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Law I

SUBJECT NO. 2 Revision Kit

STRATHMORE UNIVERSITY
DISTANCE LEARNING CENTRE
P.O. Box 59857, 00200, Nairobi, KENYA. Tel: Fax: +254 (02) 606155 +254 (02) 607498

Email: dlc@strathmore.edu

Copyright
ALL RIGHTS RESERVED. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior written permission of the copyright owner. This publication may not be lent, resold, hired or otherwise disposed of by any way of trade without the prior written consent of the copyright owner. © THE REGISTERED TRUSTEES STRATHMORE EDUCATION TRUST 1992

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STRATHMORE UNIVERSITY ● REVISION KIT - 2002 EDITION

ii Acknowledgment

Acknowledgment
We gratefully acknowledge permission to quote from the past examination papers of the following bodies: Kenya Accountants and Secretaries National Examination Board (KASNEB); Chartered Institute of Management Accountants (CIMA); Association of Chartered Certified Accountants (ACCA). We would also like to extend our sincere gratitude and deep appreciation to Mr. Jacob Gakeri for giving his time, expertise and valuable contribution, which were an integral part in the initial development of this Revision Kit. He holds the following academic honours, LLM (1st Class), LLB, Diploma in Law (K.S.L), CPS (K), and is also an advocate of the High Courts of Kenya and a Member of the Law Society of Kenya among others. He is a senior lecturer at Strathmore University, School of Accountancy, Bachelor of Commerce (BCOM) and Bachelor of Information Technology (BBIT).

STRATHMORE UNIVERSITY ● REVISION KIT

Contents iii

Contents
Acknowledgment..............................................................................................................................ii Part I: Introduction......................................................................................................................iv Approach to Examinations........................................................................................................vi Syllabus.......................................................................................................................................xv Topical Guide To Past Paper Questions..............................................................................xviii PART II: Revision Questions and Answers...................................................................................1 QUESTIONS – PAST PAPERS.................................................................................................1 ANSWERS – PAST PAPERS...................................................................................................47 Part III: Comprehensive Mocks Examinations.........................................................................198 QUESTIONS - MOCKS.........................................................................................................198 ANSWERS –MOCKS.............................................................................................................201 Part IV: Revision Questions and Answers.................................................................................213 Questions..................................................................................................................................213 Answers....................................................................................................................................222

LAW 1

iv Introduction

Part I: Introduction
“Revision is the process by which you remind yourself of material you have studied during your course, clarify problem areas and bring your knowledge to a state where can retrieve it and present it in a way that will satisfy examiners.” the any you the

The paragraph herein- above captures the essence of revision. It is implicit that revision is nothing short of “fine tuning” the knowledge acquired in the course or making it more digestible for usage in an examination. Revision is an integral part of examination preparation. It is not a substitute for a sustained preparation earlier in the course. The syllabus for Law II or Company Law is expansive and cannot be “hastily crammed” for purposes of the examination. A deliberate attempt must be made to study and appreciate the basic principles and concepts and their application. Revision must therefore be seen as a final stage in the study of any topic. Its utility is therefore undermined if earlier stages have not been completed. As an integral part of the course revision must be commenced shortly after the commencement of the course. Initially this could take the form of a review of what has been covered in a week or two not a month as this may be inordinately long. Ideally, revision is necessary after every topic. Coverage of the topics must be incisive and indiscriminate. The main purpose of this booklet is to help candidates preparing for the Law II KASNEB examination to make the best use of the last few weeks before the examination. The booklet consists of three parts: part one consists of an introduction, the various revision and examination techniques. Part two consist of eight sets of past examination questions and answers. The object of this part is to demonstrate to the candidate the actual information required in responding to examination questions, the detail required and the variety of questions expected in the examination. This section demonstrates beyond question that a serious candidate must familiarize himself with the entire syllabus. Every topic ought to be accorded the requisite attention. Part three consists of three sets of examination questions and answers. The twenty-four questions illustrate to the candidate the type of questions likely to appear in future examination papers. The purpose of this part is to expose the candidate to additional questions for better coverage of the syllabus and preparation. Revision Techniques
STRATHMORE UNIVERSITY ● REVISION KIT

The basic revision techniques include: • • • • Highlighting key points and cases in lecture notes. Candidates are encouraged to practice planning answers and then compare their notes with the answers provided. Practicing the art of writing at speed. Using key terms. A candidates revision strategy should consist of two facets namely: • • Looking back to the work already covered. However. At this level it is assumed that a candidate has tested a number of techniques and should adopt the most effective one(s). Practicing as many examination standard questions as possible. This enriches a candidates capacity to analyse problem related questions in the real examination. This is something every Law candidate need. Looking forward to the examination. In the course of revision candidates are encouraged to think of situations and circumstances which exemplify concepts and ideas likely to arise in the examination. words or phrases so as to remember the essential concepts and cases in a topic.Introduction v I dare state at the outset that I am not an expert in revision techniques. • • • LAW I . textbooks and other materials used in the course. Revision must not be boring. it is quite inorder to make a few suggestions. Reducing lecture notes and other materials to key ideas definitions and case law and committing them to memory. This demands application of numerous techniques at different times. This is additional practice but must not substitute writing full answers. This is best accomplished by working to time under examination conditions if possible avoiding the temptation to look at the answer before completion.

answer it as such and proceed to explanations thereafter. As many forms as possible ought to be used to enrich the candidate e. e) In answering a question. it almost invariably has a central kernel of meaning that is relatively clear. Attempt must be made to make the answer as attractive as possible.g. g) The question of relevance is the candidate’s greatest challenge. a candidate must give as much detail as possible. Within limits it is permissible (and often desirable) to divide up the answer into numbered points with sub-heading underlines. f) If a candidate is asked to distinguish between two legal concepts or institutions he should give not only the difference in definition but also the difference of legal effect. for the greatest fool may ask more than the wisest man can answer. Whether a question is badly worded or not if it is reasonably clear. a) revision syndicate with candidates undertaking similar examinations b) fixed time for revision per day and the rest spent on healthy exercise c) spreading revision time throughout the semester spending some time each week revising the weeks material As far as the actual examination is concerned it is necessary to note that “Examinations are formidable even to the best prepared. b) As a general rule.Approach to Examinations vi Approach to Examinations GENERAL EXAMINATION TECHNIQUES Revision for an examination may assume various forms or a combination of forms. each of the subsections must be answered separately and if the sub-sections are numbered or lettered. A question may be divided into parts even though numbers or letters are not used. The answer must be modelled to conform to the question. Though it is at time possible to respond to a question literally in a couple of sentences this may be insufficient. a candidate should divide up his time as equally as may be between all questions c) All law examinations give a certain choice of questions and the candidate must choose wisely as this ultimately determines the marks earned d) If a question is expressly divided into separate sub-sections. If a question is capable of being answered in a sentence.” a) A candidate must read through the whole of the examination paper and jot down on the examination paper the names of the relevant cases he can remember and other ideas likely to elude him when he starts writing out the answer. It need hardly be added that the examiner wants reasons and authorities for the answer even though he does not expressly ask for them. Each part must be answered separately. A candidate must answer this to begin with and then proceed to write on the doubtful part of the question. the answer must be numbered and lettered in the same manner. This STRATHMORE UNIVERSITY ● REVISION KIT . Note that every question in the examination paper that the candidate is expected to and can answer should be answered.

Approach to examinations vii saves the candidates time and enables the examiner to see how the candidate has treated the subject h) The candidates handwriting must be legible and not atrocious i) Abbreviations of technical words and other expressions must be used very sparingly. If the entire question is a problem though a rare occurrence such a question must only be answered if the issues at hand are clear and the relevant judicial or statutory authority is available. the most legitimate way to save time and energy is by omitting windy phrases b the adoption of a clear incisive style in which every word counts. However. Otherwise there is a danger of being too brief which attracts a minimal mark k) LAW I . If part (b) or (c) i application of part (a) the problem is easily digestible. The danger with problem questions is that if the “problem” is completely missed the result may be catastrophic. if time is of the essence the best course is to reduce the answer to a bare note form. However. This enables the candidate to demonstrate his skills in both. j) In most cases whereas part (a) of the question consists of a bookwork question part (b) or (c) may consist of a problem.

For example question 6 of June 1998 read: Explain the conditions which are implied in a contract of sale of goods by the Sale of Goods Act Cap 31. Right to Sell: Under section 14 (a) of the Act there is an implied condition that the seller has a right to sell the goods when property is to pass. They are almost invariably bookwork questions and are therefore manageable. iv. A candidate familiar with sections 14. Unless a different intention appears. iii. The actual technique entails stating the definition of a condition as stipulated in section 13 (2) of the Sale of Goods Act and then identifying and explaining the specific conditions implied. A condition is a term of major stipulation of a contract. 16 and 17 of the Sale of Goods Act can comfortably attempt this question. A) Single Statement Question These questions presuppose as candidates thorough understanding of the issue(s) at hand and are very rewarding if answered comprehensively. but must be avoided if the candidate is unsure of their purport. Laws of Kenya. It is the central theme of the contract and runs to the root of the contract. Fitness for Purpose: Under section 16 (a) of the Act where the buyer expressly or by implication makes known to the seller the particular purpose for which the goods are required so as to show that the buyer relies on the sellers skill or judgement. 15. and the goods are of a description which it is in the course of the sellers business to supply here is an implied condition that the goods shall be reasonably fit for such purpose. Merchantable Quality: Under section 16 (b) of the Act where goods are bought by description from a seller who deals in goods of that description STRATHMORE UNIVERSITY ● REVISION KIT . the following conditions are implied in a Sale of goods contract i. Correspond to description: Under section 15 where there is a contract for the sale of goods by description there is an implied condition that the goods shall correspond with the description and if by sample and description the goods must correspond with the sample and description.viii Introduction ANSWERING EXAMINATION QUESTIONS An ordinary Law examination is characterised by three types of questions. namely: i) Single statement question ii) Structured question iii) Problem question A single question may consist of the three types of questions. ii.

LAW I .Approach to examinations ix whether there is an implied condition that the goods shall be of merchantable quality.

x Introduction v. Correspond with sample: Under section 17 (2) (a) of the Act in a sale by sample there is an implied condition that the bulk shall correspond with the sample in quality. Trade usage or custom: Under section16 (c) of the Act an implied condition as to quality or fitness for a particular purpose may be annexed by the usage of trade. For example question 1 of November 1997 read: (a) What is meant by “Stare decisis” or judicial precedent? (b) When can or should a court refrain from following a binding precedent? Unlike in this case where the two questions are extracted from the same topic the questions may be from different topics e.g. partnership. vi. Comparing bulk and sample: Under section 17 (2) (b) in a sale by sample there is an implied condition that the buyer shall be afforded a reasonable opportunity of comparing the bulk with the sample. Agency. vii. sale of goods. Free form defect: Under section 17 (2) (c) of the act in a sale by sample there is an implied condition that the goods shall be free from any defect rendering them un-merchantable which would not be apparent on reasonable examination of sample. The question may assume any of the following two forms: (I) The inclusion of different questions in one question. B) Structured Questions This is the most common examination technique and a candidate must be well prepared for questions of this nature. viii. or law of persons.” Explain this statement and the circumstances in which the rule does not apply. A second illustration is question 3 of June 1997 which read: “It is a fundamental rule of the Law of contract that each party to a contract must perform completely and precisely what he has promised to do. STRATHMORE UNIVERSITY ● REVISION KIT .

forgetfulness of law.Approach to examinations xi The answer to the question is: a. a court may refuse to rely on it. Stare decisis operates both vertically and horizontally. decision is too wide or obscure. v) Improper conviction: In Kabui V. the High court of Kenya was emphatic that it could refrain from a binding precedent if its application perpetrated an improper or erroneous conviction in a criminal case. Changes in circumstances: if circumstances have changed so much so that applying the precedent would be ineffectual. Stare decisis literally means decision stands or stand by the decision. the High court is bound by previous decisions of the Court of Appeal. viii) Fundamental Principle of Law: If the ratio decidendi relied upon us inconsistent with a fundamental principle of law. It only applies in circumstances in which the cases have similar legal issues or material facts e. Baldly stated the doctrine is to the effect that each court in the judicial hierarchy is bound by principles established by previous decisions of courts above it in the hierarchy and courts of co-ordinate jurisdiction are bound by their own previous decisions. vi) Obscure or wide rule: If the ratio decidendi of the previous vii) Conflicting decisions: If the decision relied upon as a precedent is one of the many conflicting decisions of a court of co-ordinate jurisdiction. This is the case where the precedent has been overtaken by events. ii) iii) Per incuriam: Per incuriam literally means ignorance or iv) Overruled by Statute: A precedent cannot be relied upon if it has been overruled by an Act of Parliament. it is a wrong decision. A court of Law may refrain from a binding precedent in the following circumstances: i) Distinguishing: here the judge in the subsequent case demonstrates that the two cases relate to different points of law hence the earlier decision cannot be relied upon as a precedent. b. LAW I .g.e. This is a system of administration of justice whereby previous decisions of superior courts are followed in subsequent similar cases.R. Here the court demonstrates that the earlier decision was arrived at in ignorance or forgetfulness of law i.

Jurisdiction: a. For example question 3 of May 2000 read: “In relation to the administration of justice and Law.000 Resident Magistrate 125.” This question has two distinct parts namely. Under Section 3 (2) of the Magistrates Court Act the Resident Magistrates Court has jurisdiction throughout Kenya.xii Introduction (II) The inclusion of different parts in the same question. strokes of the cane 24. fine 20. Principal Magistrate. b. explain the composition and jurisdiction of the Resident Magistrates Court. It exercises both criminal and civil jurisdiction d. Senior Principal Magistrate to the Resident Magistrate it has jurisdiction to impose any sentence as long as the offence in question is triable by the court. Its civil jurisdiction is subject to financial or pecuniary restrictions as follows: Value of subject matter Chief Magistrate 500. The court entertains criminal appeals from the District Magistrate 3rd class - STRATHMORE UNIVERSITY ● REVISION KIT . It exercises original and limited appellate jurisdiction c. the composition of the Resident Magistrates Court and its jurisdiction. Senior Principal Magistrate. imprisonment term 7 years.000 When held by the chief magistrate. in Kenya or your country.000 Principal Magistrate 300. Principal.000 Senior Resident Magistrate 300.000 Senior Principle Magistrate 500. Composition: Under the provisions of the Magistrates Court Act Cap 10 Laws of Kenya the Resident Magistrates Court is duly constituted when held by a Chief Magistrate.000 It exercises original jurisdiction only in civil cases It has unlimited jurisdiction to hear and determine cases based on African customary law It exercises both original and appellate jurisdiction in criminal cases When held by the Resident Magistrate the maximum sentence is graduated as follows. Senior Resident Magistrate or a Resident Magistrate duly appointed by the Judicial Service Commission.

This rule is based on the logic that a person cannot accept an offer whose existence he was unaware of.000 was advertised in the local dailies.000 to any person who gave information leading to the arrest and conviction of Rastara. Ole Ndume who did not know of the reward volunteered information to inspector Sniff and Rastara was arrested and convicted. offered a reward to anyone who would assist in giving information that could lead to the arrest and subsequent conviction of Rastara. Answering a problem question demands three things: i) The principle of law at issues i. The problem may be extracted from any part of the syllabus. Generally problem questions are based on scenarios the candidate has come across in the course of preparing for the examination. It is now three months since the arrest and Ole Ndume has learnt of the reward. My advice to Ole Ndume is that he has no claim against inspector Sniff. a “most wanted carjacker” in the city. C) Problem Questions These questions are intended to test a candidates ability to apply principles of law. My advise is based on the decision in Crown V Clarke whose facts were substantially similar to those in this case. The specific rule of acceptance is that the offeree must have been aware of and intended to accept the offer. he was therefore not accepting the offer and was not entitle to the reward. However most problem questions are digestible. the problem is based on acceptance of offers. Advice Ole Ndume.e. He seeks your legal advice on whether he can successfully claim the reward. For example question 4 (c) of November 2001 read: Inspector Sniff. However inspector Sniff did not give Ole Ndume the reward. In this case Inspector Sniff made an offer for Kshs 100. Ole Ndume gave the information while unaware of the offer and was therefore not accepting the offer. Question 6 (b) of November 2001 read: LAW I . The reward of Kshs 100.Approach to examinations xiii (III) A structured question could also include a problem in its part (b) or (c) such a problem must be dealt with separately on the basis of the technique herein below outlined and illustrated. He cannot therefore claim the reward since there is no agreement between him and the inspector. In this case Clarke was aware of the offer but gave the information for a different purpose. what legal rule is being tested? ii) What is the factual situation and what does it illustrate and what is our advice? iii) What is the legal justification of the advice? In our question.

As a result Jambazi was seriously injured. At the very worst Cassman Green owes Jambazi a duty of common humanity which is not actionable. the legal principle and the advice. Jambazi is a trespasser and had in fact sneaked into Cassman Green’s compound to steal hence Cassman Green owed him no common duty of care and is not liable for the injuries Jambazi sustained My Advise to Jambazi is that he has no actionable claim against Cassman Green as he owned him no common duty of care. Jambazi has no remedy in law. In this case therefore Cassman Green owed a common duty of care to his invitees. Laws of Kenya.xiv Introduction Jambazi sneaked into Cassman Greens Compound with the intention of breaking into his car and stealing a radio cassette. State the legal principle applicable to the above facts and advise Jambazi. This problem is based on the principle of occupiers liability as exemplified by the provisions of the Occupiers Liability Act Cap 34. This question has two parts. As he was walking towards the car park. - STRATHMORE UNIVERSITY ● REVISION KIT . he fell into a pit which Green had dug to construct a reservoir. namely. an occupier owes no common duty of care to trespassers In this case. Under the provisions of the Act an occupier owes all invitees a common duty of care. Jambazi now seeks your legal advise as to whether he can successfully sue Green. However. Common duty of care is the duty to take such care as in all the circumstances of the case is reasonable to see that the visitor is reasonably safe in using the premises for the purposes for which he is invited or permitted to be there.

4 Law of Persons Legal personality Corporations Unincorporated associations Partnerships - - - LAW 1 . public and private law. civil and criminal law. 2. composition and jurisdiction of the Courts of Appeal.Explain the nature and types .2 Sources of Law The constitution Legislation Statutes of general application in force in England on the 12 August 1897.Apply legal principles relating to law of contract. High Court and Subordinate courts.Appreciate the structure and process of administration of law in Kenya . CONTENT 2.Understand the sources of law in Kenya . Substance of common law and doctrines of equity African customary law Islamic law Judicial precedent (Case law) 2.1 Nature and Classification of Law Nature of law Classification of law. Industrial Courts Judicial Service Commission The role of the Attorney-General’s office Arbitration Ethics and the law 2. The Rent Tribunal.0 SPECIFIC OBJECTIVES A candidate who passes this subject should be able to: . Business Premises Tribunal. Tribunals.3 Administration of Justice Structure.xv Syllabus Syllabus CPA PART I . property and succession matters.2: LAW 1 OBJECTIVE To provide the candidate with a broad understanding of the sources and administration of Laws of Kenya and their application. written and unwritten law. persons.SECTION 1 PAPER NO. 2. substantive and procedural law.

Definition of a dependant .8 Law of Succession .7 Legal Principles relating to .Vitiating factors.Negotiable instruments .Privity of contract . copyright and patents .Unenforceable contracts .Remedies for breach of contract .Formation of a contract: offer and acceptance. intellectual and intangible property.Hire purchase .Co-ownership .Guarantees and indemnities .Formalities . consideration.5 The Law of Contract .Assignment of contractual rights . intention to create legal relations.Gifts in contemplation of death .Sale of goods . conditions and warranties.Registration of interests in land 2.Rules of intestacy .Creation and termination of leases .Law of Succession Act (Cap.Real and personal property. mistake.6 The Law of Property .The nature of a contract . exemption clauses.9 The Law of Tort STRATHMORE UNIVERSITY ● REVISION KIT .xvi Introduction 2. duress and undue influence .Probate and administration . .Bailment . .Illegality . misrepresentation.Easements and profits . capacity.Restrictive covenants .Freehold and leasehold interests . movable and immovable.Limitations of actions 2.Insurance .Classification of contracts . trade markets.Agency .Provision for dependents .Licences .Choses in action and choses in possession .Pledge 2.Wills: formalities and revocation .Mortgages and Charges .Termination and discharge of a contract .Terms of contract. 160) Laws of Kenya 2.

Limitation of actions. - LAW I .Introduction xvii The nature of tortuous liability General defences in the law of tort Trespass Conversion Negligence Strict liability Occupiers liability Vicarious liability Defamation .

7 2001 – Q7 2002 – Q8(c) 2000 – Q6. 1 2002 – Q1(a) 2000 – Q3. 6(b) 2001 – Q6 (a) 2. 2. 4.5 Law of Contract Questions in CPA past papers 2000 – Q1(a). The questions and answers are provided in PART II of the kit. 4 2001 – Q5. Topic 2.2 Sources of Law 2. Q2 2001 – Q2(a) 2002 – Q2 2000 – Q4. 6 2000 – Q8. 5.9 Law of Insurance 2000 – Q8(a) 2001 – Q8(a) 2002 – Q8(b) STRATHMORE UNIVERSITY ● REVISION KIT .1 Nature and Classification of Law 2. 6.7 Law of Succession 2. 2(a).xviii to Past Paper Questions Topical Guide Topical Guide To Past Paper Questions Below is an outline of the major topics of the syllabus and an assortment of questions that have featured in the past CPA examinations. 5 2001 – Q8(b). 1(a) 2001 – Q1(a) and (b) 2002 – Q1(b) 2000 – Q1(a) & (b). 3. Fletcher 2. 1(b) 2001 – Q1(b). 3 2001 – Q3 2000 – Q5. 1. 2(b). 2(b).6 Law of Property 2.4 Law of Persons 2. 5 2000 – Q8. 4 2002 – Q5.3 Administration of justice and ethics 2.8 Law of Torts • Negligence • Vicarious Liability • Occupiers Liability • Rylands V.

13 Commercial Securities • Guarantees • Indemnity • Letter of Hypothecation • Bailment 2. Q8(b) and (c) 2002 – Q4 2000 – Q7.14 Law of Partnership 2. Q8(b) (c) 2002 – Q7 2001 – Q8(a) 2001 – Q4. 3 2000 – Q6 2001 – Q2(a) and (b) 2001 – Q3(b) and (c) 2001 – Q3(a) and (b) 2002 – Q8(a) LAW I .15 Hire Purchase Law 2.Introduction xix 2.12 Negotiable Instruments 2.10 Sale of goods Law 2. 6 2001 – Q7 2002 – Q3 2001 – Q2 (c).16 Questions not in the Syllabus 2000 – Q7.11 Law of Agency 2.

(i) Noscitur a sociis. (10 marks) (Total: 20 marks) STRATHMORE UNIVERSITY ● REVISION KIT . that you will omit from the partnership deed on the basis that they are implied by the Partnership Act (Cap 29) Laws of Kenya. if any. marks) (ii) Ejusdem generic. (10 marks) You have been asked to draft a partnership deed for a small retail firm of five partners. State four acts of commission that may constitute professional misconduct under the Accountants Act (Cap 531) Laws of Kenya. marks) (Total: marks) ALL questions carry (3 (3 (4 20 QUESTION TWO (a) (b) Explain the nature and advantages of commercial arbitration as a means of settling disputes.Revision Questions and Answers 1 PART II: Revision Questions and Answers QUESTIONS – PAST PAPERS LAW 1 JULY 2000 – PILOT PAPER 3hrs Answer any FIVE questions. (10 marks) Explain each of the following rules of Statutory Interpretation. QUESTION ONE (a) (b) Define Statute law and discuss its advantages. (12 marks). equal marks. State the matters. marks) (iii) Mischief rule. (8 marks) (Total: 20 marks) QUESTION THREE (a) (b) Describe the advantages of carrying on business as a partnership as opposed to a limited liability company.

explain four types of endorsements that may be made on a Bill of Exchange. (8 marks) LAW 1 .2 Questions – Past Papers QUESTION FOUR (a) When parties enter into a contract it is virtually impossible for them to include express terms to cover every eventuality. (10 marks) (Total: marks) QUESTION FIVE (a) (b) Explain the rules that govern the measure of damages in the law of contract. Advise Kamau. In the course of negotiating the price. (10 marks) (Total: 20 marks) 20 (b) QUESTION SIX (a) (b) Explain the meaning of the rule “Nemo dat quod non habet” as stipulated in the Sale of Goods Act. “I have not used the farm for sheep rearing but I think it could support 2000 sheep. (10 marks) Discuss the various equitable remedies which may be available to an injured party who is suing for breach of contract. the firm is unable to accommodate the 2000 sheep and Keter is aggrieved and intends to sue Kamau for misrepresentation. Keter asked Kamau how many sheep could be reared on the farm and Kamau replied. (6 marks) Discuss the main exceptions to the rule. He was approached by Keter who wanted to buy the farm. However. (10 marks) Kamau advertised the sale of his farm.” Keter bought the farm and immediately purchased 2000 sheep to rear on it. (14 marks) (Total: 20 marks) QUESTION SEVEN (a) In relation to the law governing Negotiable Instruments. Explain the circumstances under which: (i) The courts (ii) The statutes Will imply terms into the contract.

5 million. Hamisi Nduati has realized that the photograph was taken in one of his wrestling contests which he won. 20 million. explain the difference between each of the following. (12 marks) (Total: 20 marks) QUESTION EIGHT (a) In relation to the law of property. 15 million and Sh. marks) marks) (8 (Total: 20 STRATHMORE UNIVERSITY ● REVISION KIT . Advise them. He alleges that he enjoys international reputation as an outstanding wrestler and he therefore argues that he has been defamed. He comes to you for legal advice. Advise him. One night while he was away. (6 marks) (iii) The “Harbinger. (6 marks) (ii) Fee simple and leasehold. He also insured his household goods against burglary with Lipa Insurance Co. He insured it against fire with Linda Mali Insurance Co. burglas broke into the house.Revision Questions and Answers 3 (b) Akili Mingi owns a house at Muthaiga in Nairobi valued at Sh.” Mr. Ltd for Sh. stole all household goods and set the house on fire completely destroying it. (i) Ownership and possession. for Sh. Akili Mingi claims the sum assured from the three insurance companies. 10 million respectively.” It illustrated the point by two photographs.” a newspaper of wide circulation recently published an educational article in one part of its columns “the close structural resemblance between man and the gorilla. Ltd. One was a man in a wrestling pose with the caption “Hamisi Nduati not fundamentally different from the gorilla in physique. Ltd and Pokea Insurance Co.

marks) (2 (2 (2 (2 (2 3 hours ALL questions carry (b) (2 (2 (6 (Total: marks) 20 QUESTION TWO (a) (b) Define the term law in the strict sense of the word. explain the composition and jurisdiction of the Resident Magistrate’s courts. (12 marks) Outline the disabilities of a mentally disordered person in subject to. (20 marks) QUESTION FOUR (a) (b) In relation to the law of persons outline six consequences of incorporation. marks) (ii) Public and Private Law marks) (iii) Common Law and Equity marks) (iv) Substantive Law and Procedural Law marks) (v) Ratio Decidendi and Obiter Dicta marks) Explain the following types of precedent: (i) Declaratory Precedent. (8 marks) (Total: 20 marks) LAW 1 . in Kenya or your country. equal marks. marks) (ii) Original Precedent. (16 marks) (Total: marks) (4 20 QUESTION THREE In relation to the administration of justice and law. marks) (iii) Distinguishing Precedent.4 Questions – Past Papers MAY 2000 Answer any FIVE questions. marks) Explain eight sources of law in Kenya or you country. QUESTION ONE (a) Distinguish the following: (i) Law and Morality.

In the letter he advised Ben to telephone his decision to Cecilia. Explain whether or not you agree with the above statement. Arnold’s wife. (4 marks) (Total: 20 marks) QUESTION SIX (a) (b) Explain five implied conditions and warranties in a hire purchase agreement (10 marks) Explain how a hire purchase agreement differs from: (i) A credit sale agreement. marks) STRATHMORE UNIVERSITY ● REVISION KIT (2 . Explain whether there is a valid contract between Arnold and Ben in the following situations: (i) Ben does not telephone Cecilia but writes to Arnold accepting his offer. (4 marks) (Total: 20 marks) (b) QUESTION EIGHT (a) In relation to the law of succession: (i) Define a will. explain the circumstances when: (i) A buyer may reject the goods and repudiate the contract (6 marks) (ii) The buyer may lose the right to reject the goods. (12 marks) Arnold wrote to Ben offering to sell him a consignment of goods. (6 marks) (ii) A conditional sale agreement. (6 marks) (ii) The buyer under the Sale of Goods Act.Revision Questions and Answers 5 QUESTION FIVE (a) (b) It is always necessary to communicate acceptance of an offer to the other party to the contract. (4 marks) (Total: 20 marks) QUESTION SEVEN (a) Explain the remedies available to an unpaid seller against: (i) The goods. (4 marks) (ii) Ben sends a telex to Arnold accepting the offer. (4 marks) In relation to the Sale of Goods Act.

6 Questions – Past Papers (ii) (b) Explain four formalities of a will. marks) (8 Outline five classes of persons who may be classified as dependants for purposes of provision under the Succession Act. (10 marks) (Total: 20 marks) LAW 1 .

Revision Questions and Answers 7 DECEMBER 2000 QUESTION ONE (a) (b) Describe the various branches of civil law. (6 marks) “A corporation may be defined as a legal entity or artificial person. (8 marks) (Total: 20 marks) QUESTION THREE (a) (b) (c) Differentiate between a Memorandum of Association and Articles of Association of a registered company and detail the contents of the Articles of Association.” Explain what is meant by this statement. When Annan had finished the work. Hotels and Catering Establishment Act (Cap 301) Laws of Kenya. Annan fell ill and could not complete the work. (10 marks) (Total: 20 marks) QUESTION TWO (a) The Business Premises Rent Tribunals are established under section 11 of “The Landlord and Tenant (Shops. (10 marks) Distinguish legal rights from equitable rights and outline the main equitable remedies available to an aggrieved party. What purpose do these tribunals serve and what are their main and important powers as stipulated under the Act? (12 marks) (b) Describe the main function and composition of Judicial Service Commission. (10 marks) Explain three characteristics of a private limited company. (4 marks) (Total: 20 marks) QUESTION FOUR (a) (b) How true is it to say that in order for a contract to be discharged by performance. the performance must be precise and exact? (10 marks) Annan agreed to paint Angela’s house at an agreed price. Angela discovered that although most of the painting was satisfactory. Annan had forgotten to apply a coat of gloss paint on one of the doors. Angela refused to pay Annan the contractual price. claiming that the contract had not been fully STRATHMORE UNIVERSITY ● REVISION KIT .

She has been unable to service the loan and is in arrears. Advise Derrick in regard to his rights. marks) marks) QUESTION SIX (a) “An occupier of premises owes a duty of care towards persons who are lawfully on his premises. Advise White bank. was much less than the contract price. (10 marks) Mrs. the electricity supply to the locality cut after a few hours. 5 million from White Bank and offered her house at White Highlands Estate as a security. 50. what is the extent of potential liability of an occupier and to what extent can such an occupier safeguard such liability.8 Questions – Past Papers executed and that therefore he was entitled to be paid only a reasonable sum for the work he had actually undertaken. Annan claimed. state five obligations of a lessor towards a lessee in a lease agreement. As a result. what are the duties of a personal representative? (12 marks) LAW 1 20 (10 (Total: 20 (b) 20 . if any. The Occupiers Liability Act does not affect the position of trespassers. This. Hamilton borrowed Sh.” In relation to the above statement. (10 marks) (Total: marks) QUESTION FIVE (a) (b) In relation to the Law of Property. Advise Annan.000 by way of profits from lost production. against Desmond. (8 marks) (Total: marks) QUESTION SEVEN (a) In relation to the Law of Succession. (12 marks) Due to Desmond’s carelessness in allowing excessive electric current to develop in his generator. Derrick’s factory was at a standstill during this period and he lost Sh. The bank intends to realize the security and seeks your legal advice on what options they can take to realize the security.

Hatari showed the cheques to Mrs Karanja written “Sh.Revision Questions and Answers 9 (b) What liability is imposed on the seller of goods as regards their merchantable quality and their fitness for the purpose of those goods? (8 marks) (Total: 20 marks) QUESTION EIGHT (a) (b) (c) “A contract of insurance is a contract of “Uberrimae fidei (utmost good faith)”. (6 marks) Briefly state the various kinds of crossing on a cheque.” and wrote the amount in words from the middle of the line without using a capital letter. 50. Karanja signed blank cheques and left them with his wife to draw cash while he was away attending to business affairs.000. However before presenting the cheque for payment Hatari added figure “3” to the amount in figures and “three hundred” in the words. 350. (4 marks) Mr. Hatari filled in the amount leaving a gap after the words “Sh. Mrs Karanja instructed Hatari. fifty thousand only.” He was authorized to encash the cheque. These facts have come to light after Hatari’s resignation and Mr. a clerk in the firm of Karanja and Karanja Associates to fill in the cheques. Advise the bank. He then gave Mrs. Karanja intends to sue his bankers. 50.000” and ………. Explain this statement. He encashed the chequed for Sh. Karanja Sh. (10 marks) (Total: marks) 20 STRATHMORE UNIVERSITY ● REVISION KIT .000 only.

(6 marks) Explain the conditions that have to be satisfied by an applicant before an adoption order can be granted by the court. The police prosecute Mwangi for theft and Simiyu sues him for the return of the goods. (10 marks) Custom is the oldest source of law. (2 marks) (ii) In this action by the police. (6 marks) Mwangi has stolen some goods from Simiyu. explain the following: (i) Corporation sole: marks) (ii) Corporation aggregate. state what Mwangi will be called. (2 marks) (iii) Under what law would the action brought by Simiyu be and what would Simiyu be called? (2 marks) Explain the key distinctions between common law and equity. (i) Explain under what law the action by the police will be based. (10 marks) (Total: 20 marks) QUESTION THREE (a) In relation to the law of persons.10 Questions – Past Papers MAY 2001 QUESTION ONE (a) (b) Explain the difference between codification and consolidation of law and give examples of each. Explain the criteria which must be satisfied before a custom can be applicable as law. (8 marks) (Total: marks) (c) 20 QUESTION TWO (a) (b) Explain five advantages of arbitration as a form of settling disputes. marks) (2 (2 (b) (c) Explain three characteristics of a public company. (10 marks) (Total: 20 marks) QUESTION FOUR LAW 1 .

she contracted a skin disease caused by a chemical which the cleaners had used. She was unable to read the small print on the notice and she put the ticket in her pocket without reading. loss or damage. Discuss this statement. Advise Nabayi. Nabayi bought two garments fro cleaning. Explainthe general rules which will determine the effectiveness of such clauses. offered to clean two garments for the price of one. (12 marks) STRATHMORE UNIVERSITY ● REVISION KIT . (10 marks) A partner has a right to seek for the dissolution of a partnership.Revision Questions and Answers 11 (a) A partnership is basically a matter of agreement between the parties or partners in the business. Some days later when Nabayi went to collect the garments. A notice was displayed in the shop to this effect but with the addition in smaller print of a statement that he customer must agree in return to accept full responsibility if anything should happen to the garments. Because of poor eye sight. Some remedies may be claimed as of right whilst other remedies will depend upon the exercise of discretion by the court. A similar statement was printed on the back of the tickets which were handed to customers when they disposed the garments. (10 marks) Many contractual clauses in a contract purport to exclude liability for injury. (10 marks) (Total: 20 marks) (b) QUESTION FIVE (a) Sauti Cleaners Ltd. Explain the circumstances under which the court will generally order the dissolution of a partnership. After waring the other garment. she saw that one garment had been badly torn. Section 24 of the Partnership Act sets out rules which apply in the absence of express o implied agreement to the contrary. Outline five of these rules. (10 marks) (Total: 20 marks) (b) QUESTION SIX (a) The law provides for various remedies that are available to a person who has suffered following a breach of contract.

against Wheeler-Dealer. WheelerDealer offers to sell to Simiyu a second-hand car explaining that the brakes need attention and that he would reduce the price to take account of this. (10 marks) Explain five duties of a landlord in a tenancy agreement. Wheeler-Dealer says that he will take no responsibility for this or other defects. he would have seen that the tyres were badly worn out. explain five basic principles of insurance.12 Questions – Past Papers (b) Mike is offered and accepts a post of an accountant to start work in three weeks. (10 marks) (Total: 20 marks) (b) LAW 1 . If he had done so. (4 marks) (ii) Describe the seller’s duties in connection with delivery and indicate what constitutes acceptance by the buyer. marks) marks) QUESTION SEVEN (a) Simiyu wishes to buy his son a car as a birthday present. Simiyu accepts the offer without examining the car. (10 marks) (b) The Sale of Goods Act states that it is the duty of the seller to deliver goods and of the buyer to accept and pay for them in accordance with the terms of the contract of sale. if any. (i) Explain the meaning and effect of this Act. Advise Mike. The car loses control. A week later he receives a letter from his prospective employer stating that his services will not be required. (6 marks) (Total: 20 marks) (8 (Total: 20 QUESTION EIGHT (a) In relation to the law governing insurance. strikes a wall and is damaged beyond repair. Advise Simiyu of his rights. Simiyu drives away the car but because of defects it fails to negotiate a bend in the road.

507. Promptly repossessed the goods. 5. (Total: 20 marks) QUESTION TWO (a) Under Section 7 of the Hire Purchase Act Cap. (10 marks) (c) One of the principal duties of an agent is expressed by the maxim “delegates non potest delegare.000 and the balance was payable by monthly instalments of Sh. certain provisions are deemed void if contained in a hire purchase agreement. Identify and explain five such provisions. He paid a deposit of Sh.000. (5 marks) (b) Kinyago.000.” State and identify five circumstances under which this rule or maxim does not apply. (4 marks) (c) Distinguish between ratio decidendi and obiter dicta. Discuss the legal position. After paying instalments for six months. (4 marks) (d) Name the criticism’s that have been leveled against delegate legislation as a source of law. a hire purchase firm last year.Revision Questions and Answers 13 NOVEMBER 2001 QUESTION ONE (a) Define the term “statute” and outline three categories of bills that may be presented to parliament to be enacted into law. (4 marks) (e) State three circumstances under which the president may exercise prerogative of mercy. The hire purchase price for both items was Sh. he defaulted. 30. a small scale farmer agreed to take a television set and a radio from Malipo Rahisi Ltd. (5 marks) (Total: 20 marks) QUESTION THREE STRATHMORE UNIVERSITY ● REVISION KIT . Malipo Rahisi ltd. (5 marks) (b) Discuss the limitation of Islamic Law as a source of Law. 90. Laws of Kenya.. (3 marks).

(10 (Total: 20 (8 (Total: 20 (b) (c) LAW 1 .’ Becky.000 was advertised in the local dailies. However. (6 marks) Beeky and Beth entered into a partnership selling girls’ clothing under the registered name of ‘Girlie. Discuss this statement explaining the mistakes. (4 marks) Inspector Sniff offered a reward to anyone who would assist in giving information that could lead to the arrest and subsequent conviction of Rastara. Beth has now refused Becky admission to the firm’s premises and will not discuss the position with Becky. Beth wishes to dissolve the partnership and would like Becky to account for profits she has derived from ‘BOYZ Cloths. a “most wanted car jacker” in the city. (6 marks) State how the equitable principle of utmost good faith is manifested in the daily operations of a partnership. Inspector Sniff did not give Ole Ndume the reward. It is now three months since the arrest and Ole Ndume has learnt of the reward. Ole Ndume who did not know of the reward volunteered information to Inspector Sniff and Rastara was arrested and convicted. 100. (6 marks) What is meant by the expression “contractual capacity”? Illustrate your answer with use of appropriate examples. Advice Ole Ndume. marks) marks) QUESTION FIVE (a) Describe the various ways in which co-ownership of property may be terminated.”. marks) marks) QUESTION FOUR (a) (b) (c) Certain types of mistakes in the formation of a contract may affect the validity of a contract.14 Questions – Past Papers (a) Explain the ways in which a Partnership may be dissolved without a court order. This has given rise to frequent quarrels between Becky and Beth. The reward of Sh. He seeks your legal advice on whether he can successfully claim the reward. without consulting Beth set up a boy’s clothing shop under the registered name “BOYZ Clothes” while retainingher partnership with ‘Girlie’. Advise Beth.

(10 marks) (Total: 20 marks) QUESTION SEVEN (a) Describe the ways in which a valid written will may be revoked. As he was walking towards the car park. (6 marks) Karanja has been a tenant in Wamalwa’s house for the last three months. her mother who had gone to see Ann in hospital died in a road accident as she was going back home. (8 marks) (Total: 20 marks) QUESTION SIX (a) (i) Explain the legal principal in the Rule in Rylands Vs. Wamalwa now seeks your advice on the various ways in which he may terminate the lease agreement and lawfully evict Karanja. he fill into a pit which Green had dug to construct a water reservoir. Jambazi now seeks your legal advice as to whether he can successfully sue Green. The parties had executed a lease for a period of one year. Fletcher. Ann has learnt of her mother’s death and seeks your advice as to whether she can bequeath the same property to anyone else. Wamalwa is aggrieved as Karanja has broken all the doors in the house following several fights with his wife. State the legal principles applicable to the above facts and advise Jambazi. However. Advice Ann. Advise Wamalwa. As a result Jambazi was seriously injured. She bequeathed all her property to her mother.Revision Questions and Answers 15 (6 marks) (b) (c) Explain the main characteristics of easements. STRATHMORE UNIVERSITY ● REVISION KIT (b) (b) (c) . (6 marks) Under what circumstances will a gift in contemplation of death “Donatio Mortis Causa” take effect? (6 marks) Ann made an oral will while admitted at No Hope Medical Centre. (6 marks) Jambazi sneaked into Cassman Green’s compound with the intention of breaking into his car and stealing a radio cassette. However. (4 marks) (ii) Explain the defences available to a person sued in an action brought against him under this rule.

(6 marks) What are the circumstances under which a principal may be estopped from revoking an agent’s authority? (4 marks) Mrs. Mutua. Mrs. Subsequently. Mutua employed Emmah as her sales agent. For several years Emmah sold goods to Mrs Cool. (10 marks) (Total: 20 marks) LAW 1 . 50. Emmah collected Sh. Cool on behalf of Mrs. Advise Mrs. After her dismissal. Cool of Emmah’s dismissal. 50. Mrs.000 from Mrs Cool who has refused to pay as she had already paid Emmah. Mrs Mutua intends to sue Mrs Cool. Mutua.16 Questions – Past Papers (8 marks) (Total: 20 marks) QUESTION EIGHT (a) (b) (c) State and explain the duties of a bailee in a bailment contract.000 from Mrs. Mutua dismissed Emmah but did not inform Mrs. the proprietor of Ever Smart Boutique. Mutua has demanded the Sh.

(i) Explain the composition and jurisdiction of the Court of Appeal. (6 marks) Ndolo attended an auction conducted by Fagia Auctioneers Ltd. However. Ndolo bid for the goods under a mistaken belief that he was bidding for all the goods. (2 marks) (Total: 20 marks) (b) QUESTION THREE (a) In relation to the Sale of Goods Act: (i) Explain four rules that govern delivery of goods. (6 marks) (ii) What is the composition and powers of the industrial court? (8 marks) Name the courts that have jurisdiction to hear the following cases and give reasons for your answer. (2 marks) (iii) An appeal case by Yusuf who has been convicted by a Chief Magistrate’s court for committing a robbery with violence and sentenced to death. Eventually. (8 marks) Outline two types of classification of law. (8 marks) (ii) Explain four circumstance under which African customary law will be applicable in the courts. he found only one lot reserved for him. (4 marks) (Total: 20 marks) (b) QUESTION TWO (a) In relation to the structure of courts in your country. (2 marks) (ii) A divorce case involving Asha and Mohammed both who confess Islamic faith. (i) A trial for murder. (b) STRATHMORE UNIVERSITY ● REVISION KIT . (8 marks) (ii) Outline the circumstances under which the unpaid seller may exercise his right of lien. When he went to collect the goods.Revision Questions and Answers 17 MAY 2002 QUESTION ONE (a) In relation to sources of law in your country: (i) State and explain four reasons for delegated legislation. Ndolo is aggrieved and seeks your legal advice. The auction goods were displayed in three different lots.

000. However. 10. 250. explain five circumstances under which an agent may be held personally liable to third parties. Tajiri’s wife Juliana underwent a successful surgery and fully recovered from the illness. Raju refused to reimburse Kariuki charges for the flight Kariuki intents to sue Raju. Tajiri has now refused to marry Jacinta. Jackson asked Jacinta to give him Sh. (10 marks) (Total: 20 marks) (6 (Total: 20 QUESTION FIVE In relation to the Law of Contract (a) Explain five essentials of a valid contract. (10 marks) (b) Jackson entered into a contract with Jacinta whereby Jackson was to introduce Jacinta to Tajiri with a view of Tajiri marrying Jacinta. Advice him. Jackson then introduced Jacinta to Tajiri and Tajiri promised to marry Jacinta in case his wife who was by then very ill in hospital passed away. (10 marks) Raju appointed Kariuki to transport fresh fish from Mombasa to Nairobi. Kariuki chartered a flight to Nairobi to deliver the fish as he feared the fish would go bad and he was unable to immediately contact Raju.18 Questions – Past Papers Advise him. (12 marks) Janet and Mary entered into a contract in which Janet was to sell a car to Mary. explain six ways in which a contract may be discharged.000 which she did. Mary had paid LAW 1 . Unknown to the parties. Jacinta is aggrieved and wishes to sue Jackson and Tajiri. upon arrival in Nairobi and delivery of fish. it rained heavily and the Thange River Bridge was swept off. for Sh. Advise her. However. (10 marks) (Total: 20 marks) QUESTION SIX (a) (b) In relation to the Law of Contract. marks) marks) QUESTION FOUR (a) (b) In relation to the Law of Agency. the car which had been parked at John’s garage had been burnt down that morning following a fire outbreak at the garage. As Kariuki was preparing to leave Mombasa to Nairobi. As a result.

(8 marks) Alex is a customer at Pesa Bank. Investigations reveal that the withdrawals were made by Charles. explain the factors that he court will consider when making provisions for dependants not provided for in a will. Alex’s office messenger who stole Alex’s cheque book made out the payments and subsequently forged Alex’s signature.Revision Questions and Answers 19 Janet Sh. (8 marks) Explain the legal principles that govern double insurance of goods. 100. (12 marks) (Total: marks) QUESTION EIGHT (a) (b) (c) Outline four duties of a common carrier. he visited the bank and complained that he had noticed from his bank statement that three unauthorized withdrawals had been made and his account debited. Explain the legal position of Pesa Bank. Three days ago. (8 marks) (Total: 20 marks) 20 She now intends to sue Janet for (8 (Total: 20 STRATHMORE UNIVERSITY ● REVISION KIT .000 as deposit. breach of contract Advise Janet. marks) marks) QUESTION SEVEN (a) (b) Explain four types of endorsement that may be made on a bill of exchange. (4 marks) In relation to the law of Succession.

Explain the advantages of Acts of Parliament as a source of law. Customs could therefore be said to be the oldest source of law. (6 marks) A contract of sale of goods by sample between Ben and Sally provided that payment of the goods was to be made on arrival against the shipping documents. the particular custom should have certain characteristics. Ben (b) (c) LAW 1 . Ben. who is the buyer. on examinations.20 Questions – Past Papers NOVEMBER 2002 QUESTION ONE (a) (b) Law is described as a body of rules for guidance of human conduct which is imposed upon and enforced among the citizens of the state. (4 marks) (Total: 20 marks) QUESTION THREE (a) With reference to a contract of sale of goods. (8 marks) (Total: 20 marks) (c) QUESTION TWO On the grounds of public policy and in order to preserve and protect the cherished right of freedom of speech. However. (a) Define the term “defamation” and indicate the forms which defamation can take. Discuss (6 marks) Most of the legal systems have their origins in ancient customs of the nation. The public interest in free speech is allowed to override the private right of interest of a person whose reputation has been injured. explain the implied conditions on the part of the seller. Later. paid for the goods before he had the opportunity to examine the goods. (12 marks) (c) Explain the four essential aspects of the defence of fair comment in an action for defamation. (6 marks) One of the recognized sources of law in a country are the are the Acts of Parliament. in order to gain recognition and enforcement by the courts. State and explain these characteristics. certain statements which may be defamatory are protected by law. (6 marks) Explain the exceptions to the “nemo dat” rule. (4 marks) (b) Explain in detail the occasions when a statement would enjoy privilege and hence not actionable in court.

Revision Questions and Answers 21 found that the bulk of the goods did not correspond with the sample. In the meantime. (3 marks) (b) Describe the formalities of a valid will. (3 marks) Give details of four types of tenancies. of his intention concerning disposal of his property after his death. (6 marks) (c) Explain the ways in which a will can be revoked. (3 marks) Explain the main characteristics of a pledge. marks) (Total: marks) (4 (5 20 QUESTION FIVE A will is a declaration made by a person during his lifetime. (8 marks) (Total: 20 marks) QUESTION FOUR (a) (b) (c) (d) Define a ‘pledge’ and distinguish a pledge from a mortgage. (3 marks) (Total: 20 marks) QUESTION SIX (a) (b) (c) Illustrate three ways in which property may be acquired. Lucas had promised Terry that he would repair a window which had broken. Lucas has been constructing a house next to the house occupied by Terry. STRATHMORE UNIVERSITY ● REVISION KIT . marks) Discuss the ways in which a pawn can be redeemed. (8 marks) Describe the remedies of a legal mortgage. He has been using Terry’s compound as a storage for timber and other construction materials. At the time of signing the lease. (4 marks) Terry is a tenant of Lucas under a lease agreement signed and executed by both parties. In relation to wills: (a) Explain the characteristics of a valid will. (8 marks) (d) Give details of the duties of a personal representative. Explain in detail whether Ben can reject the goods. A year has lapsed and the window is not yet repaired.

marks) (iii) Contracts which must be evidenced in writing. With reference to life. (4 marks) (b) Cite instances when a person shall be lawfully deprived of personal liberty. (4 marks) Explain the contents of the memorandum required as evidence contract. marks) (ii) Contracts which must be in writing. (5 marks) (Total: marks) QUESTION SEVEN (a) Citing examples. write brief notes on the following: (i) Contracts which must be under seal. Advise her.22 Questions – Past Papers Terry has been under constant disturbances by the builders requiring her to open the gate so that the building materials. Terry seeks to know the rights which would protect her against these inconveniences under the lease agreement. This has made the compound dirty and noisy. liberty. (8 marks) (Total: marks) (4 (4 20 (b) of a 20 QUESTION EIGHT The fundamental rights and freedoms of the individual are guaranteed by the constitution but are subject to respect for the rights and freedoms of others and for public interest. security of the person and protection of law: (a) Explain circumstances when a person shall not be regarded as having been deprived of his life in contravention of the provisions of the Constitution if he dies as a result of the use of force. (16 marks) (Total: 20 marks) LAW 1 . (8 marks) (d) Explain ways in which a lease may be determined. could be bought in and taken out.

Revision Questions and Answers 23 MAY 2003 Answer any FIVE questions QUESTION ONE (a) (b) Explain the evolution of the doctrine of equity. Njenga made extensive renovations to the office premises. discuss the doctrine of equitable estoppel. (4 marks) (iii) The Court martial. Muthoga has now given Njenga notice to vacate the office premises claiming that the lease agreement had expired. (8 marks) (Total: 20 marks) (b) QUESTION THREE (a) (b) Citing relevant case law. After the end of the lease period. On that basis. (3 marks) (ii) The rule of law. (4 marks) (ii) The Kadhi’s court. (4 marks) Explain the powers of the Business Premises Rent Tribunal as provided under the Landlord and Tenant Act of the laws of your country. (3 marks) Identify the factors that may undermine the rule of law in a country. (10 marks) Write explanatory notes on the following: (i) Supremacy of the constitution. (12 marks) Muthoga entered into a five year lease agreement for office premises with Njenga. Advise Njenga on his legal rights. (8 marks) STRATHMORE UNIVERSITY ● REVISION KIT . (4 marks) (Total: 20 marks) (c) QUESTION TWO (a) Highlight the establishment and jurisdiction of the following: (i) The Land tribunals. outlining the circumstances under which it arises. the parties agreed that Njenga would continue occupying the office premises for another five years. indicating its contribution to the legal system of your country.

24 Questions – Past Papers (Total: marks) QUESTION FOUR (a) In relation to the law of tort. (8 marks) (Total: marks) QUESTION SIX (a) (i) What is ratification as used in the law of agency? (2 marks) 20 (b) (b) 20 LAW 1 . The posho mill is diesel propelled and when in use causes a lot of vibrations. Nabayi claims that the vibrations of the posho mill have been a nuisance and has as a result sued Namweya for damages. explain what is meant by the following: (i) Private nuisance. a beam fell from the roof of the adjoining house occupied by Nabayi and injured her. as a result of the vibrations from the posho mill. Explain the legal principles applicable in this case and advise both Namweya and Nabayi. outline the circumstances when a private individual may sue on his own behalf for public nuisance. Advise Mwezi on his legal rights with regard to the goods. Recently. it was dishonoured. (4 marks) Mwisho bought goods from Mwezi and paid for the goods by cheque. (10 marks) (Total: 20 marks) QUESTION FIVE (a) In a contract of sale of goods: (i) Explain four categories of unascertained goods. (3 marks) (ii) Public nuisance. Namweya runs a posho mill business on the premises adjoining the house of her neighbour Nabayi. (3 marks) (iii) Giving examples. (4 marks) Namweya and Nabayi are both tenants and neighbours at a residential estate. (8 marks) (ii) Explain the duties of the buyer towards the seller. When Mwezi presented the cheque to the bank for payment.

A week later.Revision Questions and Answers 25 (ii) In the law of agency. (8 marks) (b) Harry and Thuku agreed to meet for a business lunch at a restaurant in town. explain the doctrine of “Ultra vires. Advise Thuku. (6 marks) Outline the characteristics of a promissory note. allegedly on behalf of Thuku. describe the legal requirements for a valid ratification.” (8 marks) (Total: marks) (6 (b) 20 STRATHMORE UNIVERSITY ● REVISION KIT . (10 marks) (Total: marks) QUESTION SEVEN (a) (b) (c) Outline the ways in which a bill of exchange may be discharged. Chuma one of Thuku’s friends joined the two and began to participate in the discussions. During the lunch. Chuma obtained goods on credit from Harry. Chuma has since disappeared and Harry is demanding payment from Thuku. Chuma told Harry that he was Thuku’s agent to which Thuku did not object. (6 marks) Explain the various forms of a qualified acceptance of a bill of exchange. (8 marks) (Total: 20 marks) 20 QUESTION EIGHT (a) Distinguish between the following legal persons: (i) Incorporated and unincorporated associations (6 marks) (ii) Partnership and a limited company marks) Citing decided cases.

26 Questions – Past Papers NOVEMBER 2003 QUESTION ONE (a) A statute may have a provision whose meaning is not clear. It is then the duty of the court to interpret it. In relation to the above statement, detail the rules that govern such statutory interpretation. (8 marks) Distinguish a criminal wrong from a civil wrong. (6 marks) (i) Explain the meaning of judicial precedent. (2 marks) (ii) State two forms of judicial precedents. (4 marks) (Total: 20 marks)

(b) (c)

QUESTION TWO (a) (b) (c) Describe the composition and jurisdiction of the High Court of Kenya or your country. (8 marks) Explain the establishment and jurisdiction of the Rent Tribunal. (6 marks) Describe the role of the office of the Attorney General in the prosecution of criminal offences. (6 marks) (Total: 20 marks)

QUESTION THREE (a) In numbered paragraphs, distinguish between the following: (i) Statutory corporations and limited companies. (6 marks) (ii) A memorandum of association and articles of association. (8 marks) Define the term prospectus and explain the contents of a prospectus. (6 marks) (Total: 20 marks)

(b)

QUESTION FOUR (a) (b) Giving illustrations, explain the postal rules that govern offer and acceptance where contracts are communicated and concluded through post. (8 marks) Saida planned to stage a big band concert and engaged a number of eminent musicians. She paid each musician 10% of the agreed fee at the time the separate contracts were made. Five days before the concert, Saida was informed that three of the musicians
LAW 1

Revision Questions and Answers 27 Yvonne, Omar and Mike would not appear. Yvonne could not come as she was bed ridden with acute bronchitis. Omar was unable to attend the concert as his country was engaged in war and Mike could not show up because his fees was not large enough. Saida was concerned and feared that the concert would be a failure. Saida therefore decided to cancel the concert. Saida seeks your advice on her legal rights against the three musicians. Advise Saida. (12 marks) (Total: marks) QUESTION FIVE (a) (b) State and briefly explain the characteristics of joint tenancy. (6 marks) (i) Explain the term “freehold interest in land.” (4 marks) (ii) Stanley leased his house at Highlands Gardens to Oliver. The lease agreement was signed by both parties and the lease was to run for a period of two years. Stanley has been having domestic problems with his wife. Recently, Stanley’s wife stormed into the premises lease to Oliver and threatened to evict him and his family if they did not vacate the leased premises. Oliver has not breached any of the terms of the lease agreement and is aggrieved. Advise Oliver on his legal rights and the remedies available to him. (10 marks) (Total: 20 marks) QUESTION SIX (a) (b) State and explain four types of legacies. (8 marks) Paul wrote a will and bequeathed all his property to his wife Nina. Two years later, Paul was diagnosed as suffering from a terminal disease. He blamed it on his wife Nina and then called his friends Mark and Matthew and verbally told them in case he died before Nina, she should not inherit his property, instead all his property should be inherited by his mother Tina. Paul died three weeks ago and Nina has sought to inherit his property under the will, but Paul’s mother has vehemently resisted Nina’s claim. Discuss the legal position of Nina and Tina. (12 marks) (Total: marks) 20 20

STRATHMORE UNIVERSITY ● REVISION KIT

28 Questions – Past Papers QUESTION SEVEN (a) Distinguish between the seller’s right of lien and the right of stoppage in transitu. (8 marks) Explain the legal consequences of non-registration of a hirepurchase agreement. (4 marks) Stephane issued a cheque in favour of Thorne. However, when Thorne presented it for payment it was dishonoured and returned marked “R.D.”. It now transpires that when the bank clerk was checking on Stephane’s balance he checked on the wrong account and as a result the cheque was dishonoured under a mistaken belief of lack of funds. Explain Stephane’s rights against the bank. marks) (Total: marks) QUESTION EIGHT (a) (b) (c) Explain the rights of an undisclosed principal in an agency relationship. (6 marks) Describe the rules that govern limitation of actions in tort. (4 marks) Mutuku employed Mwanzia as a petrol tanker driver. While petrol was being off-loaded from the tanker, Mutuku who was standing nearby lit a cigarette. Unfortunately the petrol caught fire and burnt the whole station and injured several people. Mpole the proprietor of the petrol station seeks your advice on whom he can sue. Advise Mpole. (10 marks) (Total: marks) 20 (8 20

(b)

(c)

LAW 1

Revision Questions and Answers 29 MAY 2004 Answer any FIVE questions. QUESTION ONE (a) Explain the difference between: (i) Public and private law. (4 marks) (ii) Procedural and substantive law. (4 marks) The constitution provides that when a bill has been passed by the National Assembly it shall be presented to the President for assent. Explain the stages that a bill shall go through before it comes into operation as an Act of Parliament. (12 marks) (Total: 20 marks) QUESTION TWO A contract is an agreement which is enforceable by the law. (a) What are the prerequisites of a valid contract? (6 marks) (b) Explain the validity of the following contracts entered into by Rita, aged 16 years: (i) A contract of apprenticeship as a hairdresser with Esther. (3 marks) (ii) A contract of purchase share in Medium Mayenne Company Ltd. (4 marks) (iii) A contract with Mrs. Bwisa Nyutu, a taxi driver to visit her mother in hospital. (4 marks) (iv) A guarantee by Mrs. Kimani and Miss Tomno for an overdraft with a bank. (3 marks) (Total: 20 marks) QUESTION THREE (a) (b) Explain four defences which may be offered by a defendant to an action for trespass to the person. (8 marks) Mrs. Karanja and Mrs. Waithaka are neighbours. Their sons, Mwaura Karanja and Mwangi Waithaka, had a fight and Mwangi was hurt.

(b)

STRATHMORE UNIVERSITY ● REVISION KIT

30 Questions – Past Papers In annoyance, Mrs. Waithaka hurled a stone at Mrs. Karanja but the stone did not hit Mrs. Karanja. Mrs. Waithaka rushed to her house and came out with a bucket of water which she splashed on Mrs. Karanja making her clothes wet. Mrs. Karanja intends to sue Mrs. Waithaka. Advise Mrs. Karanja on the kinds of tort that she may seek redress from. (12 marks) (Total: 20 marks) QUESTION FOUR (a) In relation to the Sale of Goods Act, Explain four circumstances when a seller may give a better title to the buyer than he himself has in the goods. (14 marks) (b) Kate delivered her clothes to Mary for repair and paid for the work in advance. It was agreed that Mary would deliver the clothes to Kate’s house upon repair. However, Mary did not take the clothes back as agreed and in the process they were stolen when a burglar broke into Mary’s premises. With reference to the above facts, highlight Mary’s liability, if any. (6 marks) (Total: 20 marks) QUESTION FIVE (a) (b) (c) In relation to the Law of Property, distinguish between real property and personal property. (4 marks) A lease agreement usually contains implied terms on the part of the lessor and lessee. State the terms implied on the part of the lessee. (4 marks) Abdalla, the proprietor of Hesabu House, place a warning sign outside the entrance of the building that the floors of the premises were slippery. Makanyanga who was in a hurry to attend tuition classes did not see the notice. As Makanyanga was rushing to class, he slipped, fell and fractured his hand. He now seeks compensation from Abdalla. Discuss the legal position of both parties. (12 marks) (Total: marks) QUESTION SIX (a) (i) Define an easement. marks) (ii) State and explain the characteristics of easements. (4 marks)
LAW 1

20

(2

where a person may be lawfully deprived of life. Explain the circumstances when a person may legally be deprived of his personal liberty.Revision Questions and Answers 31 (b) Wambura. (6 marks) (Total: 20 marks) QUESTION SEVEN With reference to the Law of Succession. (3 marks) (g) Special legacy. Explain the circumstances under which the President may exercise the prerogative of mercy. give the instances as stipulated under section 71(2) of the constitution. under section 27 of the Constitution. exercise the prerogative of mercy. (5 marks) Section 72 of the Constitution states that no person shall be deprived of his personal liberty. Advise him. marks) (c) (8 Summarise the implied convenants by a landlord in a lease agreement. Wambura wishes to repossess the property for his own use and seeks to know the various ways in which leases may be terminated. marks) (Total: marks) QUESTION EIGHT (a) The President may. (5 marks) Citing relevant examples. write brief notes on following: (a) Will (2 marks) (b) Probate marks) (c) Codicil marks) (d) Demonstrative legacy marks) (e) General legacy marks) (f) Pecuniary legacy. (10 marks) (Total: 20 marks) the (3 (3 (3 (3 (3 20 (b) (c) STRATHMORE UNIVERSITY ● REVISION KIT . a rich but illiterate freehold owner of property has leased his property for a number of years to Wanyonyi.

Musika is found guilty of being in possession of narcotics and selling it to minors. Jumbe paid Mr. (1915) and the exceptions thereof. Musika fifty thousand shillings as part payment for the performance fee. (4 marks) (b) Explain the ways in which ownership can be acquired. (4 marks) (c) Civil burden of proof and criminal burden of proof. a local musician to perform in a series of campaign meetings the political rallies were scheduled to be held at the Wazalendo Stadium. engaged Mr. (4 marks) (Total: 20 marks) QUESTION TWO (a) (b) Explain the principle in the rule in Dunlop Pneumatic Tyre Co. (4 marks) (ii) Mr. (4 marks) (b) Codification and consolidation.32 Questions – Past Papers NOVEMBER 2004 Answer any FIVE questions. Vs. Jumbe who was vying for the national chairmanship of a political party. (12 marks) Mr. if before the first rally can be held: (i) The dais and seats at Wazalendo Stadium are burnt down and the rallies have to be cancelled. (4 marks) (Total: 20 marks) QUESTION THREE In relation to law of property: (a) Distinguish between ownership and possession. Selfridge & Co. (4 marks) (d) Statute law and judicial precedent. (6 marks) (c) Discuss the ways in which a person can lose ownership (6 marks) LAW 1 . Mr. QUESTION ONE With reference to the nature and classification of law. differentiate between the following: (a) Constitutional and administrative law. (4 marks) (e) Law of succession and law of trust. Musika. Ltd. Explain the legal position. He is arrested and sentenced to a one year jail term.

explain the following: (i) Doctrine of survivorship. (10 marks) Outline the categories of persons eligible to be naturalized as citizens of your country. explain three types of domicile. (2 marks) b. (4 marks) (Total: 20 marks) (b) (c) QUESTION SIX (a) With reference to the Occupiers Liability Act a. (2 marks) (ii) Administrator cum testamento annexo (2 marks) (iii) Administrator pendente lite (2 marks) Section 31 of the law of succession Act provides that a gift made in contemplation of death shall be valid despite there being no transfer. (5 marks) Under what circumstances may a person who is a citizen under naturalization or registration is deprived of citizenship? (5 marks) (Total: 20 marks) (b) (c) QUESTION FIVE (a) In relation of the law of succession. (4 marks) (Total: 20 marks) QUESTION FOUR (a) Define the term “domicile” and citing examples. Explain the conditions which have to be fulfilled before such gifts can be valid. Explain its main provisions in relation to liability of a person visiting a premises. (8 marks) STRATHMORE UNIVERSITY ● REVISION KIT . Define an occupier.Revision Questions and Answers 33 (d) Distinguish choses in action from choses in possession giving examples of each. (10 marks) Define the mutual will and list the requirements which must be met to make its doctrine operate.

a window cleaner was injured when a window pane was shattered (4 marks) Outline the general defences available to the occupier against liability to a trespasser. (6 marks) What are the advantages and disadvantages of judicial precedent? (8 marks) Explain the requirements which local customs should fulfill in order to gain registration and enforcements by the courts.34 Questions – Past Papers (b) (c) Advise an occupier whose employee. (6 marks) (Total: 20 marks) LAW 1 . What are the conditions which must be fulfilled for ratification to be effective? (8 marks) What are the duties of a principal towards the agent? (8 marks) (Total: 20 marks) (c) QUESTION EIGHT (a) (b) (c) Define the term source of law and outline the main sources of law. (4 marks) Ratification where the principal adopts an unauthorized act of his agent as his own. (6 marks) (Total: 20 marks) QUESTION SEVEN (a) (b) Distinguish a special agent from a general agent.

Revision Questions and Answers 35
KENYA ACCOUNTANTS AND SECRETARIES NATIONAL EXAMINATIONS BOARD

CPA PART 1 LAW 1 FRIDAY: 27 May 2005 3 hours. Answer any FIVE questions. equal marks. QUESTION ONE (a) Define the term “delegated legislation” and discuss its advantages and disadvantages. (10 marks) (b) Summarise the advantages of arbitration as a form of settling disputes. (6 marks) (c) State the composition of the Judicial Service Commission (4 marks) (Total: 20 marks) QUESTION TWO (a) (b) Describe the ways in which a corporation may be established. (4 marks) State and explain the contents of the memorandum of association. (4 marks) Time Allowed: All questions carry

(c) Explain the advantages of a private company over a public company. (6 marks) (d) Highlight the circumstances under which a partnership would be dissolved on the application of a partner. (6 marks) (Total: 20 marks)

QUESTION THREE (a) (b) Highlight the essentials of a contract for the sale of goods. (4 marks) Explain the rules that govern delivery of goods as stipulated in the Sale of Goods Act.

STRATHMORE UNIVERSITY ● REVISION KIT

36 Questions – Past Papers (8 marks) (c) Describe the remedies available to the buyer for breach of a contract for the sale of goods. (8 marks) (Total: 20 marks)

QUESTION FOUR (a) (b) What is the difference between a condition and a warranty? (2 marks) Explain the meaning of the term “privity of contract” and outline the exceptions to that rule. (5 marks) For a contract to be discharged by performance, that performance must be precise and exact. Discuss this statement. marks) (d) (5

(c)

S. a former student at Masaku High School owes the school Sh. 50,000 as fees in arrears. Mr. P. the principal of the school wrote a demand letter to F. S’s father threatening to sue S if the school fees in arrears was not cleared within seven days. F approached P and offered to make payment by delivering 30 bags of maize valued at Sh. 30,000. On condition that it would be full and final payment of the debt owed to the school. Mr. P accepted the offer and the maize was delivered to the school. Two years later, S was employed and Mr. P now intends to sue him for the fee balance. Discuss the legal position of S. marks) (Total: 20 marks) (8

QUESTION FIVE (a) Explain the meaning of the term “Co-ownership” and state the ways in which co-ownership may be terminated. (6 marks) Inventive Mind Co. Ltd. has developed a new drug to be used in the treatment of common cold. The directors wish to register the trademark for their new product.

(b)

LAW 1

Revision Questions and Answers 37 Outline the items which must be contained in the application form for registration in order for the trademark to be registered. (4 marks) (c) Roy Simiyu, a successful businessman would like to obtain some funds for expansion of his business premises through a mortgage facility. Roy Simiyu would like to know what options would be available to the bank with regard to the proposed security in the event of his business failing and his being unable to repay the loan. Describe the options available to the bank. (10 marks) (Total: 20 marks) QUESTION SIX (a) Explain the meaning of a dependant as provided in the Law of Succession Act. (4 marks) What is a will and how may a testator revoke a written will? (4 marks) Explain the duties of a personal representative. (6 marks) Highlight the reasons that may cause a legacy to fail. (6 marks) (Total: 20 marks)

(b) (c) (d)

QUESTION SEVEN (a) (b) (c) State the rule in Rylands -vs- Fletcher and explain the exceptions to that rule. (6 marks) Explain the essential elements of negligence. marks) (6

Hassan Payuka is the proprietor of Parrot Daily Newspaper which published an article two weeks ago to the effect that Mrs. Rose Brown the managing director of Child Welfare Organisation had embezzled, Sh. 5 million from the organization to purchase a private residential house for herself and family. Investigations have revealed that Mrs. Rose Brown bought the house out of a loan of Sh. 6 million advanced to her by East Bank and secured on the house. Mrs. Rose Brown is aggrieved and seeks your legal advice. STRATHMORE UNIVERSITY ● REVISION KIT

38 Questions – Past Papers Advise her. marks) marks) QUESTION EIGHT (a) Explain the circumstances under which an agent may be held personally liable for contracts made on behalf of his principal. (10 marks) Abraham instructed Sarah, an auctioneer to sell his house by auction. The sale was subject to a reserve price of Sh. 1 million. Sarah advertised the house stating that it was subject to a reserve price. However, she sold the house to her Sister Mary at Sh. 900,000. Abraham has refused to accept the proceeds and to transfer the house to Mary. Mary has demanded the transfer of the house by Abraham to her. Explain the legal position of Abraham, Sarah and Mary. (10 marks) (Total: 20 marks) (8 (Total: 20

(b)

LAW 1

Revision Questions and Answers 39
KENYA ACCOUNTANTS AND SECRETARIES NATIONAL EXAMINATIONS BOARD

CPA PART 1 LAW 1 December 2005 hours Answer any FIVE questions equal marks. QUESTION ONE (a) (b) (c) (d) Name and briefly explain five categories of civil law. (5 marks) Describe the limitations of common law which led to the development of the doctrines of equity. (5 marks) Distinguish between a consolidating statute and a codifying statute. (4 marks) Under the doctrine of judicial precedent, judges are said to make law. Explain the issues contained in a judgement. (6 marks) (Total: 20 marks) Time allowed: 3 ALL questions carry

QUESTION TWO (a) Describe the composition and jurisdiction of the Court of Appeal in your country. (6 marks) Identify the various orders or writs which the High Court may issue when exercising its supervisory jurisdiction. (4 marks) Describe the principles and presumptions that the courts use in the interpretation of statutes. (10 marks) (Total: 20 marks)

(b) (c)

QUESTION THREE (a) (b) Distinguish between a company limited by shares and a company limited by guarantee. (3 marks) Explain the advantages of a partnership as opposed to a limited liability company. (6 marks) STRATHMORE UNIVERSITY ● REVISION KIT

Mrs. he placed an advertisement in a daily newspaper which stated the following: “Once in a lifetime. Mr. A informing him that she was willing to buy the car but asked Mr. A (4 marks) (b) Mr. A received Mr. Mr. A if he would keep the offer open until she could go to her bank to obtain a loan.000 cash. E. Mr. opportunity to own a one year old Nissan Caravan. Mr. 600. E.000. A. another potential buyer said that he would pay Sh. A refused to accept the cheque stating that another potential buyer had already offered to buy the car. B (4 marks) (c) Mrs. However. another interested buyer telephoned Mr. explain the legal principles in the case in relation to: (a) Mr. A’s offer. (5 marks) (Total: 20 marks) QUESTION FOUR Mr. D (4 marks) (e) Mr. B’s letter of acceptance. in the afternoon Mr. A agreed to sell the car to Mr. Kshs. C (4 marks) (d) Ms. 500. A to say that he had second thoughts and he no longer wished to purchase the car. On Monday morning. A a cheque of Kshs. Later in the day Ms D. On Thursday last week.000 in cash for the car.40 Questions – Past Papers (c) (d) Explain the duties and rights of a limited partner.” When Mr. low mileage. However later. C also saw the advertisement and came to inspect the car after which Mrs. a car dealer sells second hand cars. However. (6 marks) State five circumstances that may lead to the dissolution of a partnership. E (4 marks) LAW 1 . Mr. C offered Mr. he immediately posted a letter of acceptance of Mr. E telephoned Mr. Mr. The offer is valid for only one day and the car will go to the first person who accepts it. A accepted the request. in the day. E returned to complete the transaction. At the same time. 500. B saw the advertisement. Citing relevant decided cases where applicable.

(6 marks) (c) Explain the rights and duties of the owner of goods in a hirepurchase agreement (8 marks) (Total: 20 marks) QUESTION SIX (a) Define the term “dependant” (2 marks) (b) State the formalities of a valid written will.Revision Questions and Answers 41 (Total: 20 marks) QUESTION FIVE (a) Explain the duties of an agent to his principal. (6 marks) (b) Outline the conditions implied in a contract of sale of goods. damaging James Kagio’s motor vehicle and injuring him. (10 marks) (Total: 20 marks) QUESTION SEVEN (a) Explain the principle of “Res Ipsa Loquitur” (The thing speaks for itself). 160) Laws of Kenya. (6 marks) In relation to the law of tort. (4 marks) (c) State the order of priority in which a deceased’s property is distributed where he dies intestate leaving no spouse or children. (4 marks) (d) Highlight the circumstances under which a grant of representation may be revoked as provided for under the Law of Succession Act (Cap. (4 marks) (ii) Egg shell skull (4 marks) Peter Ole Yang. (b) (c) STRATHMORE UNIVERSITY ● REVISION KIT . explain the following rules: (i) Reasonable foreseeability. Unable to stop the car he crashed into a motor vehicle driven by James Kagio. while driving his car down Valley View road suddenly realized the brakes of the car had failed.

42 Questions – Past Papers Advise Peter Ole Yang as to his civil liability. (6 marks) Distinguish between the following: (i) Real property and personal property. marks) (Total: 20 marks) QUESTION EIGHT (a) In relation to the law of property: (i) Enumerate the characteristics of a joint tenancy. marks) (Total: 20 marks) (6 (4 (6 (b) LAW 1 . (4 marks) (ii) State the various ways in which a lease agreement may be determined. marks) (ii) Legal interests and equitable interests.

(10 marks) (b) Explain the contribution of the courts of law to justice and social order in a country. (6 marks) (c) The constitution provides that when a bill has been passed by parliament. QUESTION ONE (a) Explain the meaning of the term “statute” and highlight the advantages of statute law. Answer any FIVE questions. However.Revision Questions and Answers 43 KENYA ACCOUNTANTS AND SECRETARIES NATIONAL EXAMINATIONS BOARD CPA PART 1 LAW I FRIDAY: 26 May 2006. State and explain five other forms of dispute resolution other than the courts of law. State the procedure the bill shall go through after it has failed to receive Presidential assent. (6 marks) (b) Outline the extent to which common law differ from equity. equal marks. 3 hours. it shall be presented to the president for assent. (8 marks) (Total: 20 marks) QUESTION TWO (a) Settling disputes through the courts can be slow and expensive. (10 marks) (Total: 20 marks) Time Allowed: ALL questions carry QUESTION THREE STRATHMORE UNIVERSITY ● REVISION KIT . there are instances when the president declines to assent a bill.

3. 5. (6 marks) (ii) Specify the conditions that an alien must satisfy before being granted citizenship in your country.000 (two thousand shillings) to buy food for his children and Shs. when Wanyonyi Peter asked Simiyu Tito for repayment of the Shs. (6 marks) (b) 20 (c) LAW 1 . He would like to know whether to continue the business as a partnership or convert it into a private limited company. (4 marks) (b) Explain the concept of illegality of contracts and give three types of contracts that are considered illegal. A month later. the law provides that where a written contract does not accurately express the intention of the parties. (8 marks) (Total: marks) QUESTION FOUR (a) When parties enter into a contract. Wanyonyi Peter lent Simiyu Tito the money.44 Questions – Past Papers (a) With reference to the law of persons: (i) Distinguish between domicile of origin and domicile of choice.000 (five thousand shillings).000 (five thousand shillings) to be repaid within a month. (8 marks) (Total: 20 marks) QUESTION FIVE (a) Distinguish a freehold from a leasehold ownership of land. Advise him on the advantages of a private limited company. 5.000 (three thousand shillings) to bribe someone who could fix for him a person who had been bothering him. Wanyonyi Peter enquired what Simiyu Tito needed the money for and Simiyu Tito replied that he needed Shs. (6 marks) Tamu Limau is a senior partner in a real estate business. State the facts that a party seeking rectification must prove before the court can rectify the contract. 2. (8 marks) Simiyu Tito requested Wanyonyi Peter to lend him Shs. the court may rectify the contract to make it express the true intentions. Explain the legal principles applicable in this case and advise Wanyonyi Peter. Simiyu Tito refused to do so.

Ray Matata is in rent arrears. Ray Matata was prohibited from using the shop for any other business other than for sale of groceries. Charlie Kabue is aggrived and seeks your advice on the remedies available to him. presented it for payment whereupon it was dishonoured. (4 marks) Identify the various ways in which an easement may be created. Mr. Abel Rigo received a bill of exchange for value from Boaz Ngao who had obtained the instrument fraudulently. Moreover. (6 marks) Explain the meaning of the term “holder” in relation to a bill of exchange and outline the duties of a holder of a bill of exchange. Advise him. (4 marks) Charlie Kabue leased his shop at High Pole Commercial centre to Ray Matata for a period of two years.Revision Questions and Answers 45 (b) (c) (d) List four circumstances under which a leasehold may be terminated. marks) marks) QUESTION SIX (a) (b) (c) In relation to the law which governs negotiable instruments. Charlie Kabue has discovered that Ray Matata has rented out the room used as a store of the shop to Ben Chege. (4 marks) (Total: 20 marks) (6 (Total: 20 STRATHMORE UNIVERSITY ● REVISION KIT . list and briefly explain four types of endorsements. State with reasons whether Abel Rigo can claim to be a holder in due course. Abel Rigo fearing that the bill might lapse. In the lease agreement.

He picked the ripe mangoes from the fallen branches and gave all of them to children in his vicinity. (5 marks) (ii) H pasted a poster on D’s wall advertising a disco-dance competition meant for raising funds for a local charity. (5 marks) (Total: 20 marks) LAW 1 . (4 marks) (Total: 20 marks) QUESTION EIGHT (a) (b) Indicate the ways in which the tort of conversion may be committed. his neighbour. (6 marks) State the powers of a personal representative. which had extended to his land. (5 marks) Explain the legal principles applicable in each of the cases listed below: (i) B entered into C’s land to recover a time rabbit which belonged to B’s children. (iii) F cut down the branches of a mango tree belonging to G.46 Questions – Past Papers QUESTION SEVEN (a) (b) (c) State and explain the circumstances under which the court may make a limited grant of administration as provided under the law of succession. (10 marks) Explain the conditions to be fulfilled before a gift in contemplation of death can take effect.

religious and political background. it regulates the conduct of all persons irrespective of their racial. This is because parliament is composed of elected representative of the people hence statute law is a manifestation of the wishes of the people. Companies Act. Advantages of statute law • Democratic in nature: parliamentary law making is the most democratic approach to legislation. as a Bill and as law. • Publicity: it widely published in that it attracts media attention and must be published in the Kenya Gazette. parliament provides the necessary regulatory framework. Statute law is recognized as a source of Law in Kenya by Sec. • Ejus dem generic STRATHMORE UNIVERSITY ● REVISION KIT . • Resolution of legal problems: statute law enables society through parliament to resolve legal problems as and when they arise by enacting new statutes or amending those in existence. For example Judicature Act. PILOT PAPER QUESTION ONE (a) Statute law. social or political by enacting statutes.Answers – Past Papers 47 ANSWERS – PAST PAPERS SUGGESTED SOLUTIONS LAW 1 JULY 2000. • Supreme Source of Law: (b) • Noscitur a sociis This rule is to the effect that words of doubtful meaning derive the colour and precision from the words phrases with which they are associated. Parliament does this when the legal problem manifests itself. This law made by parliament directly in exercise of legislative power conferred upon it by the constitution. • Uniformity: Statute law applies indiscriminately. • Dynamic: statute law enables the society to keep pace with changes in other fields for example economic. Kadhis Court Act. 3 (I) (c) of the Judicature Act. • General application: statute law consists of general principles applicable at different times and circumstances.

the general words must be interpreted as being limited to the class or person or things designated by the particular words. The rule was explained in R V. Under this rule.” The accused had tapped on a balcon rail and “hissed” at men as they passed by below. Question was whether she had solicited.48 Questions and Answers Revision This rule is applied to interprete things of the same kind. The law relating to Arbitration in Kenya is contained in the Arbitration Act. • Mischief rule (Rule in Heydons Case (1584) This is the oldest rule of statutory interpretation. four things must be discerned and considered. 1930. This Act repealed the Arbitration Act Cap 49. genus and species. QUESTION TWO (a) Arbitration This is a dispute resolution mechanism whereby disputes are settled of court by arbitral tribunals which make arbitral awards as opposed to judgement. It was held that since the purpose of the statute was to prohibit solicitation. Edmundson as follows. The rule was applied in Smith V. It was a criminal offence for a prostitute to solicit “in a street or public place. where general words follow particular words in the statute. This mechanism is only applicable in the settlement of civil disputes. Hughes to interpret the provisions of the street. the court examines the statute to ascertain the mischief it was intended to remedy and then interprets the statute so as to advance the remedy. This rule is only applicable where the particular words form a class or persons or things. The rule was explained by Lord Coke in Heydons case (1584). o What was the common law before the making of the Act? o What was the mischief and defect for which the common law did not provide? o What remedy has parliament resolved and appointed to cure the disease? o What is the true reason for the remedy? The office of the judge shall then give such interpretation as shall suppress the mischief and advance the remedy. LAW 1 . it was immaterial from where the act took place. The accused was found guilty. According to the judge. 1995. The rule was applied in Evans V. Cross to interprete the provisions of the Road Traffic Act.

Answers – Past Papers 49 This Act applies to both domestic and international arbitration. An arbitration agreement may take the form of a clause in the contract or a separate agreement between the parties. timing and the language to use for their convenience. • He enters for the purpose of or in the course of practicing as an accountant into partnership with a person who does not hold a practicing certificate or secures any professional business through the services of such a person or by means not open to an accountant. an arbitration agreement is an agreement by parties to submit to arbitration on all or certain disputes arising between them. • Less acrimonious: arbitral proceedings tunes down the enemity between the parties. • Expertise: parties to the dispute have an opportunity to appoint the most qualified/specialized person to determine their dispute. • Flexibility: arbitral tribunals are not bound by their previous decisions. • He permits his name or the name of his firm to be used in connection with an estimate of earnings contigent upon future transactions in a manner which may lead to the belief that he vouches for the accuracy of the forecast. if the parties to the dispute agree Statute Arbitration falls under the purview of alternative dispute resolution mechanisms. • Cheap: it costs less to see a dispute through arbitration. Under sec 3 (1) of the Act. A court of law. An arbitral tribunal means a sole arbitrator or a panel thereof. • Convenience: parties are free to determine the venue of the proceedings. (c) Under Section 28 of the Accountants Act. • Informality: arbitral proceedings are free from legal technicalities which characterize ordinary courts. A • • • • dispute may be referred to arbitration by: The parties to the dispute. • He certifies or submits in his name or in the name of his firm a report of an examination of financial statements and examination of such statements and the related records have not been made by him or a partner or an employees in his form. STRATHMORE UNIVERSITY ● REVISION KIT . • Privacy: arbitral proceedings are conducted in private free from undue publicity. there is room for exploration. Advantages of arbitration • Speed: it is faster method of dispute resolution. a member of the institute is guilty of professional misconduct if: • He allows any person to practice in his name of an accountant unless such person is an holder of practicing certificate or is in partnership with or is employed by him.

A partner is entitled to take part in the management of the firms business. A contract ought to be self sufficient in its terms. (b) • • • • • • • • • • Partners share profit or loss equally A partner who incurs loss or liability while discharging the firms obligations is entitle to indemnity. • Flexibility: can change the nature of business with the consent of all partners. • Easy to form: formation of partnership is not subject to legal formalities. A partner cannot be expelled by the others unless the power to do so by expressly vested on them QUESTION FOUR (a) (i) Courts of law imply terms into contracts when called upon to do so by either party. This is because the parties are responsible for drawing the contractual map. A person cannot be admitted as a partner without consent of all existing partners Difference in ordinary matters may be decided by majority of the partners The firm cannot change its business without the consent of all partners Every partner has the right of access to the firms books of accounts.50 Questions and Answers • • Revision He includes in any statements return of firms to be submitted to the council any particular knowing it to be false. A partner is not entitled to remuneration for taking part in the management of the firm business. • Sharing of losses: this reduces the amount borne by a single partner. they do so reluctantly. QUESTION THREE (a) Advantages of Partnership • Specialization: creates room for specialization particularly the professional firms. • Shared management: partners participate in the decision making process and in the management of the firms business. He is guilty of gross negligence. However. A partner who lends money to the firm is entitled to interest at the rate of 6% per annum. Courts imply terms into contracts for two reasons: • To give effect to the intention of the parties LAW 1 .

The court implied the term that the passage to the jetty ought to have been reasonably safe for the ship. Courts of law imply terms in contracts from trade usage or custom and by applying the reasonable by stander test. • Reasonable by stander test A court of law will imply a term into a court if a reasonable person over hearing the contract being made would imply the same. facilitate commercial transactions. Cap 507 implies conditions and warranties in hire purchase agreement. The Hire Purchase Act. It was held that the jetty owner was liable. The plaintiff sued for damages. it grounded on the river bed and was damaged.: the defendant who owned a jetty situated upstream river Thames agreed that the plaintiffs could unload at the jetty. Cap 31 implies both conditions and warranties in sale of goods contract. Terms implied by the Sale of Goods Act Conditions  Right to sell: the seller shall have the right to sell  Correspond to description: the goods shall correspond to the description  Fitness for purpose: the goods shall be reasonably fit for the specific purpose. (ii) The Sale of Goods Act.Answers – Past Papers 51 • To give business efficacy i.e. In The Moorcock Case (1888). as the ship moved towards the jetty. In Hassan Ali Issa V. Jeraji produce shop the court implied the term that where a repaired item is not collected within a reasonable time. the party undertaking the storage is entitled to reasonable storage charges. Standard Bank Co. It was so held in Harilal Shah and Champion Shah V. Trade usage or custom A court of law may imply a trade usage or custom into a contract if it is satisfied that the usage or custom. • Exists • Is certain • Is reasonable • Is known by the parties • Had not expressly or impliedly been excluded or exempted from the contract by the parties. Ltd.  Merchantable quality: the good shall be of merchantable quality  Sale of sample: the bulk shall correspond to the sample STRATHMORE UNIVERSITY ● REVISION KIT . In Fluery and King V. During low tide. Mohammed Wali and Another the court implied a custom into the transaction and held that the plaintiff was entitled to a reduction in the purchase price.

Warranties  Quiet possession: the hirer shall have and enjoy quiet possession  Free from charge or encumbrance: the goods shall be free from any charge or encumbrance in favour of a 3rd party.  Trade usage or custom: a warranty may be implied by trade usage or custom.  Free from charge or encumbrance: the goods shall be free from any charge or encumbrance.  My advise to Kamau is that he is not liable even if sued by Keter as his statement was a mere opinion which does not amount to misrepresentation.  Fitness of purpose: the goods will be reasonably fit for the specific purpose.  It is apparent that Kamau’s statement is not an assertion of fact. Proof: the plaintiff must prove the loss or damage suffered.  My advice is based on the decision in Edindgton V. Fitzmaurice. (b)  This problem is based on statements made by parties in the course of negotiations leading to a contract.  Merchantable quality: the goods will be of merchantable quality. but the statement turns out to be untrue and Keter feels aggrieved and has threated to sue Kamau for misrepresentation. The Hire Purchase Act implies the following conditions in all hire purchase agreements  Right to sell: the owner will have the right to sell the goods when property is to pass. He must adduce evidence of the actual loss suffered. Warranties  Quiet possession: the buyer shall have and enjoy quiet possession.  In this case Kamau made a statement which influenced Keter to purchase the firm. It is an opinion for which Kamau cannot be sued. QUESTION FIVE (a) Compensation: the purpose of a monetary award in the damages is to compensate the plaintiff for the loss suffered.52 Questions and Answers Revision  Trade usage or custom: a condition may be implied by trade usage or custom.   LAW 1 .

they were liable for the loss suffered by the plaintiff company. 8th by which the plaintiff had lost a lot of business.  Knowledge If a party is in possession of special knowledge or more information about the contract. the party is liable for such loss. an engineering firm agreed to sell and deliver a boiler to the plaintiff on June 5th. but he fails to act. it is the duty of the innocent party to take every reasonable step to reduce the loss it would otherwise have suffered from the breach of contract. Baxaendale (1864) where it was held that the profit were irrecoverable since its loss could not be traced to the defendants delay hence it was too remote. In Musa Hassan V. This case is authority for the proposition that the plaintiff is only entitled to recover such loss as is reasonably forseable. the ship captain was obliged to accept goods from other STRATHMORE UNIVERSITY ● REVISION KIT . The innocent party is bound to act reasonably to mitigate its loss. On one occasion the appellant rejected the milk on the ground that it was unfit for consumption. the other party suffers loss. Hunt and Another the appellant had agreed to purchase all the respondents milk for one year. In Harris V. However. The rule on remoteness of damages was formulated in Hadley V.t hey had ben informed more than once the urgency with which the boiler was required.100 as its loss was traceable to the appellants breach of contract. It was held that since the defendant had a special knowledge about the contract but failed to act on it. The appellant argued that the respondent had not mitigated its loss reasonably.Answers – Past Papers 53  Causation: There must be a nexus or link between the plaintiff loss and the defendants breach of contract failing which damages are said to be too remote and irrecoverable. However the boiler was damaged and was not delivered until Nov. it was held that the respondent had acted reasonably. The plaintiff company resolved to extend its business as well as take advantage of certain other lucrative contracts.  Mitigation of loss This principle is to the effect that when a breach of contract occurs. Newman Industries Ltd. The respondent proved that it was fit for consumption. A similar holding was made in The Heron II where it was held that the respondent was entitled to the f4. Though the defendants were aware of the plaintiffs business. It was so held in Victoria Laundry (Windsor) Ltd V. Edmonds it was held that if the charterer of a ship failed to provide cargo in breach of contract. Whether the party has acted reasonably depend on the facts of the case. The respondent however. The defendant. It required a large boiler. converted the milk to ghee and casein which fetched a lower price.

. the amount by which the loss ought to have been reduced is irrecoverable. Ltd. The amount specified may be liquidated damages or a penalty. .  Liquidated damages and penalties Parties to a contract may before hand fix the amount payable to the innocent party in the event of a breach. specific performance cannot be decreed if it is not possible for the defendant to perform or where performance requires constant supervision.Monetary compensation is inadequate . It is a sum to be forfeited whether the sum is liquidated damages or a penalty is for the court to decide on the basis of certain presumptions enunciated in Dunlop Pneumatic Tyre Co. (b) Equitable remedies Specific performance This is a court order which compels the defendant to perform its part of the contract as agreed. The remedy may be availed where. it is said to be a penalty an is unenforceable. If a party fails to mitigate loss. It is an equitable remedy which manifests the maxim that equity acts in personam.Hardship to the defendant: specific performance cannot be decreed. Ltd. This is because he who seeks equity must do equity. This is because courts are reluctant to make ineffectual orders.Clean hands: the plaintiff must approach the court free from blame. . It compels the defendant to fulfill its promise in accordance with the contract without an option to pay damages. This is liquidated damages. The award or refusal of remedy is discretional. A court of law exercises its direction on the basis of the following principles. The plaintiff may lose the remedy if he has kept on his rights for too long. . If the amount has no relation to the loss.54 Questions and Answers Revision persons to mitigate the loss. A penalty covers but does not assess loss. LAW 1 . If the amount is a genuine pre-estimate of the loss likely to be suffered by the innocent party it is awarded by the court as such without proof of the actual loss.The subject matter is unique or has unfair characteristics . .Performance and supervision: as a general rule. If it is likely to subject the defendant to undue hardship. duress or undue influence disentitles the party the remedy. New Garage and Motor Co. it is extravagant and unconscionable. Evidence of misrepresentation.Delay or doctrine of laches: the decree of specific performance must be appied for at the earliest possible instance as delay defeats equity.A contract is breached in anticipation. V. This is because he who comes to equity must do so with clean hands.

STRATHMORE UNIVERSITY ● REVISION KIT . Injunctions are either interim or temporal and perpetual or permanent. It is restorative in nature. • Injuction This is a court order which either restrains a party from doing or continuing to do a particular thing or compels it to undo what it has wrongly done. • Quantum Meruit Literally means.Where the contract does not specify the amount or sum payable. An injunction is an equitable remedy which may be granted in the following circumstances:. .If money cannot adequately compensate the plaintiff . as it is likely to perpetrate unfairness. It is an equitable remedy available in the following circumstances. the party that has performed is entitled to compensation for work done.Doctrine of mutuality: as a general rule.He has a prima facie case with overwhelming chances of success . .Answers – Past Papers 55 . A prohibitory injunction restrains a party from doing or continuing to do a particular thing. A mandatory injunction on the other hand compels a party to put right what it has wrongly done. Atkinson.Where the contract is substantially performed. . This is compensating a party on the basis of the proportion of work completed. specific performance is not available in circumstances in which it would not have been available were the positions of the parties interchanged. .Contracts for personal service or performance: Specific performance is not available in contracts of personal service for example employment contracts. as much as it is earned or deserved.e. maintaining things as they are For an injunction to be granted the applicant must establish that: .Where a contract is divisible and the party was performed part of its obligations (Ritchie V.Where partial performance is accepted and the party has so performed .If it is necessary to maintain the status quo i. An injunction may be prohibitory or mandatory.If the remedy is not granted he will suffer irreparable injury.

• Sale of factor or Mercantile agent: this is an agent who is entrusted with possession of goods and who sells in his own name.Account .Rescission .Tracing . of the previous the sale. which provide inter alia “…. if a seller who has already sold goods but retains their possession resells them to a bonafide purchaser who takes them in good faith for value without notice.where goods are sold by a person who is not the owner thereof and who does not sell them under the authority or with consent of the owner. LAW 1 . This rule was developed by the common law to protect the interests of the true owners of goods. If a mercantile agent in possession of the principals goods sells them to a third party in the ordinarily course of business and the third party takes the goods in good faith for value without notice he acquires a good title. literally means one cannot give what he has not. • Sale of buyer in possession: under sec 26 (2) of the Act. he acquires a good title.Winding up . the buyer acquires no better title than the seller had……. if the true owner of the goods. Other equitable remedies include: . holdsout some other person as owner and third parties deal with the person as owner. It was held that the apparent had no title in the goods as the fraudulent person had non to pass to him. (b) Exceptions to Nemo dat • Estoppel: under section 23 (1) of the Act. Lindsay and Company Ltd.” This rule is best illustrated by the decision in Cundy V. Where a person who had acquired goods fraudulently purported to sell them to appellant..Appointment of Receiver QUESTION SIX (a) • • • • • The common law rule of nemo dat quod non nabet. the true owner is estopped from denying the sellers authority to sell and the purchase acquires a good life. if a person who has agreed to buy goods obtain their possession or documents of title before ownership passes to him and as a consequence he sells to a bonafide purchaser who takes in good faith without notice of the original sellers Lien he acquires a good title. It means that a seller of goods cannot give the buyer thereof a better title than he himself has in the goods.56 Questions and Answers • Revision Where a party ready and willing to perform its part of the contract but is prevented from doing so by the other. • Resale by seller is possession: under sec 26(1) of the Sale of Goods Act. The rule is now embodies in section 23 (1) of the Sale of Goods Act Cap 31.

passes a good title. As was the case in Phillip V. public and legally constituted market. if sellers title is voidable. the bill is to be payable. Special endorsement A special endorsement is an endorsement which specifies the person to whom.Sale by a liquidator under the Companies Act. or to order.Sale by a charge or mortgagee under the Registered Land Act. Conditional endorsement Section 33 of the Act provides that where a bill purports to be endorsed conditionally.” This the oldest exception to Nemodat but does not apply in Kenya. Sale by court order: A sale made pursuant to an order made by a court of competent jurisdiction passes a good title Sale in Market Overt: market overt means “open. but he sells the goods to a bonafide purchaser before the title is avoided and the purchaser takes in good faith for value without notice of the sellers defective title. Sale under common law power: A sale made in exercise of a power conferred by the common law passes a good title for example sale by an agent of necessity or by a pledge. buyers in market overt acquired a good title even in relation to stolen goods provided that: . 24 of the Act.” This gives the right to the endorsee to claim payment on the bill but prohibits him from transferring the right of payment to anyone else. the condition may be disregarded by the • • • STRATHMORE UNIVERSITY ● REVISION KIT . Its effects is to convert the order bill into a bearer bill. For example: .Sale under the Disposal of Uncollected Goods Act. Brooks. .g. a bill endorsed “pay x only” or “pay x for the account of Y. Sec 34 (4) provides that when a bill has been endorsed in blank any holder may convert the blank endorsement into a special endorsement by writing above the endorsee’s signature a direction to pay the bill to the order of himself or some other person.The sale took place in public place. the purchases acquires a good title. Sale under statutory power: A sale made in exercise of a power conferred by statute.The buyer took them in good faith without notice of any defect in title and . . QUESTION SEVEN (a) • Blank endorsement Section 34 (1) of the Bill of Exchange Act provides that an endorsement in blank specifies no endorsee. At common law. Restrictive endorsement An endorsement is restrictive which prohibits further negotiation of the bill e.Answers – Past Papers 57 • • • • • Sale under voidable title: under sec.

000.000. exclusive use.000 as the house is under insured.000. • LAW 1 . misuse.000 Kshs. 5. • It generally confers no proprietary rights.000.000 x 20.000. • It is often said that possession is “nineteenth” of the law May be converted to ownership May be acquired in different ways for example.000. possession and disposition. 5 million for the stolen goods. • It is a question of fact.000 and risk has attached.000.000.000.000 25.000.000 x 20. 9. • My advise to the insurance companies is that since risk has attached Lipa Insurance Co.000.000. 20. 12. Linda Mali Co. • • It is a question of law. inheritance. Ltd must pay 10. In which case Lina Mali Co. 8.000. • Linda Mali and Pokea Insurance companies are obliged to indemnify Akili Mingi for the loss suffered on the basis of apportionment of liability depending on the sum assured with each of them.000.000 25. Our calculations are based on the assumption that he policies were not subjected to average otherwise the amount recoverable by Akili Mingi would have been Kshs. QUESTION EIGHT (a) (i) Ownership Possession • Is proprietary in nature as it • This is the act of holding or confers basics rights over being in control of property and property for example right to the intention to exert control.000. (b) • This problem is based on the twin principle of contribution and apportion of insurance applicable in circumstances in which a person takes out more than one policy on the same subject matter and risk. 15. • In this case Akili Mingi has taken out two policies on the house with different insurers and has also insured his household goods for Kshs. and payment to the endorsee is valid whether the condition has been fulfilled or not.000 While pokea insurance co.000 while Pokea Insurance Company Ltd would pay Kshs 6. Ltd is obliged to pay Akili Mingi Ksh.000 Kshs.58 Questions and Answers Revision payer.000 • • The total amount payable to Akili Mingi for the house is Kshs. Ltd must pay 15. • The owner if legally entitled to part with possession. Ltd would pay Kshs.

STRATHMORE UNIVERSITY ● REVISION KIT .Answers – Past Papers 59 adverse possession. transfer etc in various ways.

• • • (b) • • • This problem is based on the tort of defamation with specific reference to libel. My advise to Hamisi Nduati is that he has no action for defamation.60 Questions and Answers Revision (ii) Fee Simple Leasehold • This is the largest estate a • This is a secondary estate person can acquire from the derived from a primary estate.” This is because the article in question was educational in character and only uses Hamisi Nduati’s photograph to illustrate a scientific point. A leasehold may be fixed term. surrender forfeiture lapse of time etc. My advise is based on interalia the absence of the perquisites for defamation. creates the relationship between abuse and to dispose. It is for a defined premises for a specified duration but confers exclusive possession. In any event an ordinary person reading the article and the caption would not discern a defamatory intention. it is apparent that Hamisi Nduati has not been defamed by the article and caption in “The Harbinger. • Leasehold is the quantum of rights demised by the lease. periodic. the landlord and tenant between the grantor and the grantee. state. for example notice. At the very most Hamisi Nduati can only argue that he has been abused by “The Harbinger” for which he has no actionable claim. service sufferance or at will. • It is unlimited in duration • • It is a freehold estate • It confers the right to possession and use. It is a contractual relationship. • Can be inherited by anyone but escheats to the state in the • event of failure of an issue. It is terminable in various ways. Subject to numerous conditions. • A lease is a transaction which • It confers unlimited right to use. In this case. • It is disposable by deed or will. • It may be created by grant as well as entranchisement. • • • LAW 1 .

law of succession. (iii) STRATHMORE UNIVERSITY ● REVISION KIT . Administrative law. Law is enforceable and its sactions are visible. law of marriage. Morality is not enforceable. Private law: consists of those branches or fields of law in which the state has no direct interest. It asserts state sovereignty. It is concerned with the legal relations between persons in ordinary transactions. had insufficient remedies. Criminal law. It consists of societal prescriptions. Common law and Equity Common law may be described as a branch of the law of England which was developed by the ancient common law courts from the customs. The society determines what is wrong or right to shape the behaviour of its members. The courts could only award damages. Common law acts in rem.Answers – Past Papers 61 MAY 2000 QUESTION ONE (a) (i) Law and Morality Morality is the sense of judgement between wrong and right developed by society. usages and usages of the English people. It is based on customs and religious practices or emanates from parliament. The common law system of administration of justice was rigid. law of trust. (ii) • • • • • Public law consists of those fields or branches of law in which the state has a direct interest as the sovereign. These courts applied the peoples way of life in the settlement of disputes thereby giving such customs the force of law. It is concerned with the constitution and functions of the various organs of government. for example. The courts standardized and universalized customs. Law is superior and certain. It deals with the rights and details of parties in ordinary transactions example law of contract. Constitutional law. The common law was characterized by the writ system and stare decisis. law of property. their relations with each other and the citizenry. slow. did not recognize trust and was highly technical. Law consist of rules recognized and applied by the state in the administration of justice.

It disposes of the case before the court. It is the binding element in a decision or precedent. It developed to mitigate the harshness of the common law as well as fill in the gaps in the common law system. law of torts. (vi) • • • • • • Ratio decidendi: literally means reason for decision. It is a principle or proposition of law based on the material facts of the case. LAW 1 . Equity acts in personam. Obiter dicta: literally means ‘by the way’ These are by the way statements of law or fact made by a judge in the course of judgement. Administration of justice was speedy and the system was very flexible. Penal code Procedural Law: This is adjectival law. It consists of a group of fact situations with those of the instant case as minimum.62 Questions and Answers Revision Equity ordinarily means fairness or justice. It is that branch of the law of England which was developed by the various Lord Chancellors courts to supplement the common law. Substantive Law • Consists of rules themselves as opposed to the procedure of how to apply them. It defines the rights and duties of parties and prescribes or provides remedies e. recognized trusts and enhanced protection of borrowers. additional remedies. • It consists of the steps or guiding principles or rules of practice to be complied with in the application of substantive law or in the administration of justice for example Criminal Procedure Code. • It also defines crimes or offences and prescribes punishment. If common law and equity conflict equity prevails. They do not dispose of the case before the court and have no binding force. It is therefore an addendum to the common law.g law of contract. Equity developed the so-called maxims of equity. 75 and Civil Procedure Act Cap 21. Cap. (b) (i) Declaratory precedent This is the application of an existing principle or proposition of law in a subsequent case. Equity was developed by a different system of court and on the basis of different principles namely fairness. These statements strengthen or reinforce the decision of the court and can be relied upon by advocates in subsequent cases as persuasive authority.

it has been used in a variety of sense by different writers who have attempted to explain it. It is the supreme law of the land and prevails over all other laws (Okunda and Another V. Executive. • Constitution • This is a body of basic rules and principles by which a society has resolved to govern itself or regulate its affairs. According to Salmond. • It can be written or unwritten. However.g. (iii) QUESTION TWO a) The term law has no assigned meaning. • It contains the agreed content of the political system and the basic structure of government e. STRATHMORE UNIVERSITY ● REVISION KIT .Answers – Past Papers 63 (ii) Original precedent This priniciple or propostion of law as formulated by the court. Legislature and the Judiciary. It is recognized by section 3(1) (b) of the Judicature Act as a source of law under the phrase: • Certain Acts of the UK parliament applicable in Kenya. These two explanations of term law cannot accommodate all the branches of law in existence. law consists of a body of principles recognized and applied by the state in the administration of justice. It becomes a precedent in its own right. • Certain Acts of Indian Parliament • Certain Acts of Legislative council. It has no specific definition. According to Hart law is coercive instrument for regulating social behaviour. Law may be described as an aggregate of rules enforced by courts of law. R (1970) Legislation or (statute law) This is law made by parliament directly in exercise of legislative power conferred upon it by the constitution e. The sovereign formulates the commands and enforces sanction. Law has been described as a command backed by sanctions of the sovereign. Kadhis Court Act companies Act. Distinguishing precedent This is a subsequent decision which effectively distinguishes the existing precedent. Law has also been defined as collection of binding rules of human conduct prescribed by human beings for the obedience of human beings. It is the law creating precedent. Judicature Act. • Section 3 (1) (e) of the Judicture Act recognizes the constitution as a source of law of Kenya. • • • • The study of law is referred to as jurisprudence.g.

usages and practices of the English people. Common Law: may be described as a branch of the law of England which was developed by the ancient common law courts from the customs. They are recognized as a source of law of Kenya by section 3 (I) (c) of the Judicature Act. It is that branch of the law of England which was developed by the various Lord Chancellors courts to supplement the common law. These customs and usages generally lack universality and so is African Customary Law. proclamations made by subordinate bodies for example local authorities. Revision • • • • • • Delegated legislation: It also referred to as sub-ordinate. Equity: Equity ordinarily means fairness or justice. Its application is qualified by section 3 (I) (c) of the Judicature Act. It is an unwritten source of law whose application is qualified by the section 3(I) (c) of the Judicature Act. These are by-laws. professional bodies.64 Questions and Answers • Acts of the parliament of Kenya. usages and practices of the various ethnic groups of Kenya. It developed to mitigate the harshness of the common law. It is recognized by section 3 (2) of the Judicature Act. A good local custom must be reasonable consistent with written law and must have been observed openly since time immemorial. A custom embodies a principle a principle of utility or justice. regulations.K parliament to regulate the conduct of the inhabitants of the UK generally. Judges make law when they formulate or enunciate principles or propositions of law where nonexisted or in doubtful situations which are applied in subsequent similar cases. QUESTION THREE The Resident magistrate court • Establishment LAW 1 . rules. This source is recognized by section 3 (I) (c) of the Judicature Act and has wide application. Statutes of General Application: These are certain statutes enacted by the U. However their application as a source of law is qualified. These courts applied the peoples way of life in the settlement of disputes thereby giving such customs the force of law. Government ministers and statutory bodies in exercise of delegated legislative power conferred upon them by parliament through an enabling or parent Act. Case law of judge made law: These are principles or propositions of law made by judge when deciding cases before them which are applied in subsequent similar cases. indirect or subsidiary legislation. African Customary Law: African customary law is based on customs. However. orders. It is law made by parliament indirectly. not all local customs may be relied upon by court of law in the settlement of disputes.

000 800. Laws of Kenya. • Appellate Jurisdiction The court entertains criminal appeals from the District Magistrates Court 3rd class.000 • • • The court has unlimited jurisdiction to entertain cases based on African customary law. principal magistrate or senior resident magistrate. Senior resident magistrate or the resident magistrate duly appointed by the Judicial service commission. Jurisdiction Under section 3(2) of the Magistrates Court Act. It exercises both original and appellate jurisdiction. Cap 10. the chief magistrate. senior principal magistrate.000. Criminal Jurisdiction It exercises original and appellate jurisdiction in criminal cases. or a fine not exceeding Kshs.000 500. it has jurisdiction imposes any sentence as long as the court can try the offense. QUESTION FOUR STRATHMORE UNIVERSITY ● REVISION KIT .000 1. principal magistrate.000.Answers – Past Papers 65 It is established by section 3 (I) of the Magistrates Court Act. 7 years imprisonment. senior principal magistrates.000. It has no appellate jurisdiction in civil cases.000 2. It exercises jurisdiction in both civil and criminal cases. • Composition The court is duly constituted when held by. Civil Jurisdiction The courts civil jurisdiction is subject to pecuniary or monetary limitations. When held by the Resident magistrate the maximum sentence it can impose is 24 strokes. 20. Court Chief magistrate Senior principal magistrate Principal magistrate Senior resident magistrate Resident magistrate • Value of subject matter 3.000. When held by the chief magistrate. as a sub-ordinate court. the court has jurisdiction through out Kenya.

Ltd (1981. It was so held in case of Macaura V. In registered companies.66 Questions and Answers (a) Legal Personality Revision Once an unincorporated association is incorporated it becomes a body corporate with rights and subject to obligations. mind or soul. • Has no capacity to become a director of a company • Cannot be appointed auditor • Cannot sue directly QUESTION FIVE (a) Acceptance is one of the basic elements of a contract.) (b) A mentally disordered person is subject to certain disabilities or incapacities for example. The answer to this question is generally yes as: Acceptance must be communicated in the prescribed method. • Limited Liability: members as a general rule. Ltd (1925) • Capacity to contract: An incorporated association has legal capacity to enter into contractual relationship in pursuit of its objects. if any or in an equally expeditious method. In addition. it has capacity to hire and fire it was so held in Lee V. When a wrong is done on a corporation the corporation is prima facie the proper plaintiff. Ltd (1897) vide: when a company is formed it becomes a legal person distinct and separate from its members and managers. • Perpetual succession: A corporation is a creation of law. Lees Air Forming Co. are not liable to make good the debts of the corporation. Acceptance of an offer gives rise to an agreement between the parties. The Property of a corporation is vested in it and does not belong to its members. Northern Assurance Co. It was so held in Foss V. It has not body. • Has no capacity to enter into a contract. Question is whether acceptance must be communicated to the offeror in all cases. Death of member has no effect on its existence. with certain capacities and incapacities. This is the so-called rule in Salomon V. • Has no capacity to have a domicil of choice • Has no capacity to make a will. It has capacity to exist in perpetuality. Its life lies in the intendment of law. members can only be called upon to contribute the amount due on their share or the amount they undertook to contribute the amount due on their share or the amount they undertook to contribute. Salomon and Co. It can therefore insure such property since it has an insurable interest. LAW 1 • . Harbothe (1973). This is the most fundamental attribute of incorporation from which all other consequences flow. • Owning of property: A corporation has capacity to own property. • Sue or be sued: As a legal person with rights and subject to obligations a corporation has capacity to sue to enforce the rights and can be sued on its obligation.

. However. acceptance is deemed complete when it is received by the offeror. there is a contract between Ben and Arnold as Ben communicated acceptance by telex and to the extent that Arnold received the same. • • • • • • • • (b) (ii) QUESTION SIX (a) Conditions STRATHMORE UNIVERSITY ● REVISION KIT . Where the offeror does not expressly or impliedly authorizes the offered to communicate acceptance by post. Lindsell. it was so held in Entores Ltd. but he does so. the mode of effecting acceptance is immaterial so long as the offeror receives the same. As was the case in Adams V. Miles Far East Corporation Ltd. Where parties negotiate by telex acceptance is deemed complete when the offerees message of acceptance is received by the offeror. As a general rule silence does not amount to acceptance.Where communication of acceptance is expressly or impliedly waived by the offeror. the method applicable depends on the type of offer and the circumstances in which it is made. there is a valid contract between the two. Where the offeror impliedly authorized the offeree to communicate acceptance by post. provided the letter was actually received by Arnold. acceptance is deemed complete when the offeror hears the words of acceptance. Miles Far East Corporation Where the offeror expressly authorizes the offeree to communicate acceptance by post. V. Where parties negotiate by word of mouth in each other presence. As was the case in Byrne V. Bindley. Ltd there is no communication.Answers – Past Papers 67 • If no method is prescribed. It was so held in Entores Ltd V. acceptance need not be communicated in all cases for an agreement to arise for example: . In the second instance. As was the case in Carlills case. • As a general rule. acceptance is deemed complete when the letter is posted whether it reaches its destination or not. • In this case it appears that there is a contract between Arnold and Ben as Ben writes to Anold accepting the offer. (i) This problem is based on communication of acceptance.Where acceptance is by conduct as was the case in Carlill V. Carbolic Smoke Ball Co. Where parties negotiate by telephone. It was so held in Felthouse V. Van Tienhoven. acceptance is deemed complete when the offeror hears the words of acceptance it was so held in Entores Ltd V. Miles Far East Corporation. acceptance is deemed complete when the letter is posted whether it reaches its destination or not.

In Lee V. This is a contract of sale of goods whereby the purchase price is payable by five or more instalments. The original seller sued D for recovery and it was held that D had obtained a good tile as under a credit sale agreement property in the goods passes with the payment of the first installment. Property in the goods pass to the buyer when the condition(s) prescribed by the seller is fulfilled. Butler (1893) Y bought furniture under a credit sale agreement and resold them to D before he had paid all the instalments. (b) • • (c) (ii) A conditional sale agreement A conditional sale is a contract of sale of goods whereby part of the purchase price is payable by installments. there is an implied condition that the owner will have the right to sell the goods when property is to pass. This means the purchase can give a good title to a subsequent purchaser even when he himself has not completed the purchase. It differs from a hire purchase agreement as in that it is a contract of sale whether a hire purchase agreement is a contract of hiring. Merchantable Quality: Under section 8(1). Free from charge of encumberance: under section 8 (1) of the Act. if the hirer expressly or by implication makes known to the owner the particular purpose for which the goods are required. the parties are seller and buyer. there is an implied condition that the goods will be of merchantable quality. and the contract so provides. Fitness for purpose: Under sec 8 (2) of the Act. LAW 1 .68 Questions and Answers Revision • • • Right to sell: Under sect 8(1) of the Hire purchase Act. The hire purchase agreement is a contract letter between the owner of goods and the hirer while in credit sale. The property in this case passes on the payment of the first instalment and the owner losses his rights against the goods. Warranties Quiet possession: Under section 8(1) of the Act there is implied warranty that the hirer shall have and enjoy quiet possession of the foods. The distinction between a hire-purchase agreement and a credit sale is that whereas the latter is a contract of sale with an obligation to purchase the former is a hiring contract. there is an implied condition that the goods will be reasonable fit for that purpose. Credit sale This is a sale on credit. there is an implied warranty that the goods will be free from any charge of encumberance in favour of third party when property is to pass. except where the goods are second hand.

• If after arrival the carrier notifies the buyer or his agents that his is holding the goods on his behalf.Answers – Past Papers 69 QUESTION SEVEN (a) Right of lien or retention of goods: This is the right of unpaid seller in possession of the buyers goods to retain them as security for the price. Right of stoppage in transitee This is the right of unpaid seller who has already parted with possession of the goods to resume such possession as long as the goods are in the course of transit. This lien is possessory in character. The unpaid seller right of stoppage in transitu is defeated in the following circumstances:• If the buyer or his agent intercepts the goods before their arrival at the appointed destination. the unpaid seller has the right to resell the goods in his possession to recover the amount payable. Under section 4 (1) of the Sale of Goods Act. • If after the carrier wronglyfully neglects or refuses to deliver the goods to the buyer or his agent. the right of stoppage in transitu is only exercisable if the buyer becomes insolvent. the carrier must redeliver the goods in accordance with the seller’s directions but at the sellers expense. • Where the right to resell is expressly reserved in the event of the buyers default. • If the goods are of a perishable nature • If the seller notifies the buyer his intention to resell the goods but the buyer does not pay or tender the price within a reasonable time. It is exercisable by the unpaid seller over any goods in his possession. STRATHMORE UNIVERSITY ● REVISION KIT . Under section 46 (1). • If the buyer becomes insolvent • If the goods have not been sold on credit • If the goods have been sold on credit but the term of credit has expired. He passes a good title to the buyer in the following circumstances. the right of stoppage is exercible either by: • Taking possession of the goods • Giving notice of the seller claim to the carrier or his principal Once notice is given. Under section 44 of the Act. the lien is exercisable in the following circumstances. It is exercisable even where the seller holds the goods as the buyers agent. Right of resale Under section 47 and 48 of the Sale of Goods Act.

• Where the price is payable on a specified day but the buyer neglects or refuses to do so. The amount recoverable is the estimated loss directly and naturally resulting from the buyer breach of contract. the buyer incurs no liability and any price paid is irrecoverable. QUESTION 8 (a) (i) Under the provisions of the Law of succession Act. • If the seller delivers more goods than the quantity contracted for. The buyer may lose the right to reject the goods: • If he has accepted the goods and given something in earnest to bind the contract. (a) Remedies against the buyer • Action for price Under section 49 of the Act. An action for price is a suit for a liquidated sum of money due to the seller in respect of the goods. the seller is entitled to withhold their delivery. A will is the legal declaration by a person of his intention or wishes regarding the disposition of his property after death duly made and executed in accordance with the provisions of the Law of succession Act. • If the seller delivers by instalments contrary to the terms of the contract. • If the seller delivers goods mixed with those of a different description. an unpaid seller has the right to maintain an action against the buyer for the price of the goods in the following circumstances. the seller may maintain an action against him in damages for non-acceptance. • If the seller delivers less goods than the quantity contracted for. • If the duration if any prescribed by the contract has lapsed • If no duration is prescribed by the contract but reasonable time has lapsed. (b) (I) The buyer can reject the goods for breach of a condition to be performed by the seller for example. • Where the property in the goods has passed to the buyer who wrongfully neglects or refuses to pay the price. A will includes a codicil. • Damages for non-acceptance Under section 50 (1) of the Act.70 Questions and Answers Revision Right to withhold delivery Under sect 49(2) where property in the goods has not passed to the buyer. In such circumstances. if the buyer wrongfully neglects or refuses to accept or pay for the goods. LAW 1 .

• Parents. • Attestation: the will must be attested to or witnessed by two or more competent witnesses. a written will is characterized by the following formalities: • Writing: there must be some writing. grandparents and step parents as were being maintained by the deceased before death. • Brothers and sisters who were being maintained by the deceased. • The husband if he was being maintained by his wife before her death. • Presence of witnesses: all witnesses must sign the will in the presence of the testator. STRATHMORE UNIVERSITY ● REVISION KIT . defines the term “dependant” by identifying the categories of persons who in law are deemed to be dependants. duly made and executed in accordance with provisions of the Act relating to the making of wills. step children and children whom the deceased had taken into his family as his own as were being maintained by the deceased before death. • Position of signature or mark: the position of the signature or mark must clearly show that it was intended to give effect to the writing as a will. It may be handwritten. • Half brothers and half sisters who were being maintained by the deceased before death. • The wife or wives and former wife or wives of the deceased. • Children of the deceased. The law does not prescribe the wording of a will. The law does not prescribe the form of attestation. However they need not be present at the same time. altering or adding to its dispositions and appointements.Answers – Past Papers 71 A codicil is a testamentally instrument made in relation to a will explaining. (b) Section 29 of the Law of Succession Act. typed or printed. The law does not insist on any form. • Grand children. Under section 11 of the Law of Succession Act. • Signature or mark: the will must contain the signature or mark of the testator or some other person who signs in the presence and in accordance with the directions of the testator.

e.e. Law of Succession: is concerned with the disposition of a deceased’s estate. • Rescission: the essence of this remedy is to restore parties to a contract to the position they were before the contract. false imprisonment etc. once an infringement is established the aggrieved party is entitled to damages. b) c) d) e) f) (b) Legal rights These are rights which originally could only be enforced by the common law courts. It also describes certain principles e. LAW 1 . it is for the court to determine whether or not the remedy sought will be availed e. Law of Marriage: is concerned with the various ways of contracting a valid marriage. occupiers liability etc. It prescribes the rights and duties of persons who have an interest in land. passing off. • Specific Performance: this is a court order which compels a party to perform its contractual obligations as agreed. dependants gifts in contemplation of death. servitudes and encumbrances. strict liability. May be temporal or perpetual. Equitable rights These rights were originally enforceable by the Lord Chancellors Courts. Law of Torts: is concerned with violations of personal and proprietary rights and prescribes remedies to aggrieved parties. The main equitable remedies include: • Injunction: this is an order of the court which restrains a person from doing or continuing to do a particular thing or compels him to undo what he has wrongly done. These rights are enforceable as of right i.g. duties and other incidences between trustees and beneficiaries. rights and duties of the spouses and divorce. battery. for example breach of contract. It defines the ways of acquiring interest in land and its extinguishment. rights of trustees or beneficiaries. It defines a contract. duties and remedies of parties to a contract. assault. It identifies what acts or omissions amount to torts e. defamation. It provides for wills.72 Questions and Answers DECEMBER 2000 QUESTION ONE Revision a) Law of Contract: is concerned with rights. detinue conversion. The enforcement of these rights is discretional i. negligence nuisance. It prescribes how a contract may come to an end and sets out remedies. vicarious liability. primary and secondary interest e. prescribes its elements identifies its terms and their effect and lays out the vitiating elements.g.g.g. Law of Property: is concerned with interest in land e. It compels a party to honour its part of the contract without an option to pay damages.g. freehold and leasehold estates in land. trespass to goods. Law of Trust: is concerned with the rights. intestate succession and probate.

secret profit. A controlled tenancy is the tenancy of a shop. It entails the handing over of anything obtained in a manner inconsistent with the position e. Appointment of Receiver: this is a person appointed by a debenture holder or the court at the instigation of a creditor to take over the borrowers security to facilitate payment of the amount owing. • • • • • • • • • (b) The Judicial Service Commission is established by section 68(1) of the STRATHMORE UNIVERSITY ● REVISION KIT . Facilitate vacant possession of the premises to enable the landlord. To authorize the tenant to carry out repairs in case of default by the landlord and deduct the cost thereof from the rent payable. its assets realized. Winding Up: is the legal process by which a company’s existence is brought to an end. trustee or promoter.Answers – Past Papers 73 • • • • Account: this is generally an exposition of the utilization of money or goods coming into the hands of a person in a specific capacity e. The remedy is generally available only if the subject matter or its application is identifiable. • Attorney General • Two persons who are for the time being judges of the High Court and Court of Appeal appointed by the President.g. Constitution. To permit the levy of distress for rent. Tracing: this is a court order which enables a party to follow and recover assets or monies which change hands in certain circumstances for example: void contracts. To determine the amount payable by a tenant as service charge in respect of a controlled tenancy. To vary or rescind any order made by the tribunal. • Chairman Public Service Commission • High Court registrar as secretary. QUESTION TWO • Business premises tribunals have original jurisdiction to determine civil disputes between landlords and tenants of commercial or business premises if the tenancy is “controlled”. agent. To determine or vary the rent payable in respect of a controlled tenancy. liabilities ascertained and paid and the balance if any distributed between the members. To apportion rent between tenants where a controlled tenancy is shared. hotel or catering establishment which: o Has not been reduced into writing or o Has been reduced into writing but does not exceed 5 years and contains a method for termination otherwise than by breach Decisions of the tribunal may be appealed against in the Highcourt. It consists of: • The Chief Justice as chairman.g. To determine whether a tenancy is controlled or not.

• Discipline: it disciplines magistrates. Kadhis Clerks interpreters and other staff of the Judiciary. High Court registrars. • Appointment: it engages or employs magistrates. LAW 1 .74 Questions and Answers Revision Functions: • Advisory: it advises the President of the appointment of judges of the High Court and Court of Appeal. Kadhis. • Administration: it administer the Judiciary in that it is the principal administrative organ of the Judicial Department. High Court registrars. Clerks. Accountants and other judicial staff.

external constitution. domicil objects • It regulates the relations capital. Convention and conduct of meetings. • Every company must have a set • Every company must have a of regulations as its articles. • It contains the rules of internal management. • It is the internal constitution of the company. memorandum of association. liability date particulars between the company and its of subscribers. • • It prevails over the articles in • the event of a conflict.Answers – Past Papers 75 QUESTION THREE (a) Memorandum of Association Articles of Association • It is one of the constitutive • It is one of the constitutive documents in company document formation. • It regulates the relations between the company and 3rd parties. a private company is any company whose articles of association: STRATHMORE UNIVERSITY ● REVISION KIT . • Under the provisions of the Companies Act. • It embodies the name of the company. its clauses are •              It is alterable resolution. its contents include: Calls Forfeiture of shares Borrowing Transfer and transmission of shares. members. by special If a company adopts Table A as its articles. Some of alterable. • A company may adopt Table A • It is the company’s charter or with or without modifications. Capital Bonus shares Dividend Office of managing director Office of company secretary Auditors Account Division of powers between the general meeting and the board etc.

The property of a corporation is vested in it. QUESTION FOUR (a) Among the various ways in which a contract may be discharged is performance which literally means fulfillment of the parties obligations as originally agreed. It has an insurable interest in it. the common law did not acknowledge discharge by performance unless the obligations were performed precisely and exactly. Revision o Limit the number of members to 50 excluding current and o Restrict the right to transfer its shares. Other Characteristics include: • Has at least one director. • A corporation is an artificial person in that inter alia.e. o Common Seal: a corporation has a common seal to authenticate its transactions. o Sue or be sued: a corporation has capacity to sue to enforce its rights and may be sued on its obligations. Ltd. The person formed is juristic or abstraction of law. this is referred to as the rule in Salomon V. for example: o Perpetual Succession: being a creation of law. Salomon and Co. It is an abstraction of law. In company law. statute or by registration. It has an independent legal existence. • Not obliged to publish accounts. It can hire and fire. (c) • A corporation is an association of persons recognized as a legal entity. Cutter was not entitled to LAW 1 . This statement is a correct observation. o Owing of Property: it has capacity to own property. contractual obligations had to be observed to the letter. • A corporation has several characteristics peculiar to it. • Not obliged to hold the statutory meeting. This is the common law doctrine “precise and exact” which insisted that every part of the contract had to be performed i. • This doctrine is best exemplified by the decision in Cutter V. Originally. These characteristics clearly demonstrate that a corporation is an artificial person. It is a body corporate or a juristic person. o Prohibit any invitation to the public to subscribe for its shares or debentures. it is created through a legal process for example charter. Powell.76 Questions and Answers former employees who are members. it has capacity to exist in perpetuity. Where it was held that Mrs. o Capacity to contract: a corporation has legal ability to enter into contractual relationships. it can only be killed through a legal process. • Entitled to commence business from the date of incorporation.

Atkinson. e. STRATHMORE UNIVERSITY ● REVISION KIT . The decision in Planche V. Partial Performance if accepted: if a party to a contract expressly or impliedly agrees to pay for a partially performed contract. As was the case in Ritchie V. Prevented Performance: if a party ready and willing to perform its part of the contract is prevented from doing so by the other or the others fault. Colburn is explicit on this. Ltd. Hedges illustrates this exception. contract of carriage of goods payable per tonne. (b) • This problem is based on the exceptions of the common law doctrine of precise and exact i. V. In summation. Frustration of Contract: a contract is frustrated when performance of the obligations is rendered impossible by unforeseen or extraneous circumstances for which neither party is to blame. This exception is illustrated by the decision in Marshides Mehta and Co. • In this case it is clear that Annan has substantially performed his part of the contract and is therefore entitled to payment for workdone. this is only the general rule to which there are many exceptions. Cutter had rendered services from August 2nd to September 20th when he died. substantial performance. However. the doctrine of price and exact has been modified and there are several circumstances in which performance need not necessarily be precise and exact for parties to be discharged for example. Yet the employer is under no obligation to pay anything. performance must be precise and exact. the party is bound to pay for the portion completed. In such a case parties are discharged without precise and exact performance.g. Substantial Performance: if contractual obligations are almost fully performed the party performing is entitled to payment for work done.e. What amounts to substantial performance is a question of fact. This far it is evident that discharge by performance means performance must be precise and exact. the party is entitled to payment on Quantum Meruit. This decision illustrates how unfair the doctrine of precise and exact can be in that Mr.Answers – Past Papers 77 compensation as her husband had not performed his part of the contract precisely and exactly. • • • • • Divisible Contracts: if a contract can be divided into different compartments to be paid for separately. The decision in Sumpter V. Barrong Verhegen. it is arguable that whereas it is true to surmise that for a contract to be discharged by performance. performance of part thereof entitles the party to payment on Quantum Meruit.

This action leaves the security intact. Statutory Power of Sale: the bank is entitled to sell Mrs.78 Questions and Answers • Revision • Angela is bound to pay Annan the contract price less the amount she is likely to spend to have the door painted as agreed and since Angela has paid a “reasonable” sum for Annans work. In this case White Bank as the Mortgagee or Chargee has several remedies in its favour. This may be the most effective remedy. This advise is based on the decision in Marshides Mehta and Co. Fore Closure: this is a court order which would bar Mrs. However if the amount is too low. Duty to repair: the lessor is generally bound to repair the roof. Duty to ensure quiet possession: the landlord. his servants or agents must not interfere with the tenants enjoyment of the premises as he is entitled to quiet possession. My advise to Annan is that he has no actionable claim against Angela. QUESTION FIVE (a) • • • • • • (b) Duty not to derogate from the grant: the landlord must not do anything inconsistent with the tenancy. Duty to adjust or suspend rent: if the premises or part thereof is destroyed or damaged otherwise than through the lessee’s negligence rendering it or part thereof unusable. Hamilton from redeeming her security. the lessor is bound to suspend or adjust the rent payable accordingly. Hamilton for the amount due under the contract. Duty to put the tenant in possession: the lessor is bound to hand over to the lessee the keys to the premises. drains. Ltd. he may have a cause of action for breach of contract. V Barron Verhegen whose facts were substantially similar. main walls. Annan has no cause of action against Angela. Duty to grant premises fit for purpose: the landlord must ensure that the premises let to the lessee is fit for the particular purpose for which it is let. QUESTION SIX (a) • Under the Provisions of the Occupiers Liability Act Cap 34 an occupier owes a common duty of care to all invitees to his premises. • This is the duty to take such care as in all the circumstances of the case is reasonable to see that the invitees or visitors are reasonably LAW 1 . Suit on Personal Covenant: this is the right of the bank to sue Mrs. Hamiltons house to recover the amount due. common passages and installations. • • • • This problem is based on the remedies of the mortgagee or chargee in property law.

o Accepted risks: these are risks willingly accepted by the invitee for which the occupier is not liable. Though he must not injure them. This imposes a heavier duty on occupiers. The common duty of care owed by occupiers to invitees extends to persons permitted by law to enter into such premises. he is under no obligation to ensure that they are safe and is not liable if they are injured in his premises. it is also a tort to the extent that a person affected by it has suffered particular loss. The occupier must be prepared for children to be less careful than adults. To ascertain and pay all debts owed by the deceased. It means that the occupier is liable if an invitee is injured while in the premises. • Although public nuisance is a crime.Answers – Past Papers 79 safe in the use of the premises or for the purpose for which they are invited or permitted to be there. An occupier can guard against such liability in various ways. o Independent Contractor: an occupier is not liable if the invitees damage is due to the faulty execution of a task by an independent contractor. To get in all the free property of the deceased including debts and monies payable to the personal representative. an occupier owes no common duty of care to trespassers. 50.000 from lost production. STRATHMORE UNIVERSITY ● REVISION KIT . • My advise to Derrick is that he has an actionable claim against Desmond in damages for public nuisance. However. QUESTION SEVEN (a) • • • • • To provide and payout of the deceased’s estate reasonable funeral expenses. • • • • • (b) • This problem is based on the tort of nuisance and more specifically public nuisance. provided that the occupier had acted reasonably in entrusting the task to the contractor and had taken reasonable steps to satisfy himself that the contractor was competent and that the task had been properly executed. To pay out of the deceased’s estate all expenses of obtaining the grant and other reasonable expenses of administration. Such warning must be clear as to what is expected of the invitees and must be conspicuously displayed. In this case Desmonds careless act made Derrick to incur a loss of Kshs. Desmonds carelessness in allowing excessive current to develop led to the public nuisance for which he is liable to prosecution by the Attorney General. To give the court a full and accurate inventory of the assets and liabilities of the deceased within 6 months of the grant. o Sufficient warning: to all invitees or visitors.

Boehm. LAW 1 . In the alternative. Although the contract of insurance is one of the utmost good faith. if the buyer expressly or by implication makes known to the seller the particular purpose for which the goods are required. Non-disclosure of a material fact renders the contract voidable at the option of the innocent party. a fact is deemed material if it would have influenced the judgement of a prudent insurer in determining whether or not to take the risk and how much premium to charge. However under section 16 (a) of the Sale of Goods Act. utmost good faith. where goods are bought by description from a person who deals in such goods in the ordinary course of business. It modifies the common law principle of caveat emptor Both parties are bound to disclose material facts. It was so held in Carter V. there is an implied condition that the goods shall be reasonably fit that particular purpose. • This is the principle of Caveat emptor. so as to rely on the sellers skill or judgement. The duty to disclose generally exists throughout the negotiation period. Parties are bound to disclose material facts in their actual and presumed knowledge. legal propositions or provisons etc. • This condition is not implied if the buyer has examined the goods but failed to detect defects which such examination ought to reveal.80 Questions and Answers Revision • • To distribute or retain in trust all assets remaining after payment of expenses and debts. certain matters need not be disclosed. • Under section 16 (b) of the Sale of Goods Act. a seller of goods is not liable if the goods or not of merchantable quality or fit for the purpose for which they are obtained.e. QUESTION EIGHT (a) • • • • • • • • • The contract of insurance is the Locus Classicus illustration of the so called contracts uberrimae fidei i. (b) • As a general rule. A fact is deemed material if a reasonable person in the circumstance of the insured and disclosed it. matters of public notoriety insureds opinion. there is an implied condition that goods shall be of merchantable quality. To complete the administration of the estate in respect of all matters other than continuing trusts and produce a full and accurate account of the administration within 6 months of confirmation of the grant. The duty to disclose on the part of the insurer and insured is voluntary and bilateral. for example unknown facts. This condition is not implied if the goods are sold under a patent or other trade name.

Answers – Past Papers 81 (b) • A crossing consists of two parallel transverse lines on the face of the cheque. STRATHMORE UNIVERSITY ● REVISION KIT . for example. There are two types of crossing namely. • A general crossing consists of two parallel transverse lines on the face of the cheque with or without the words “and company”. general and special. “not negotiable” “account payee” etc. It is an instruction to the banker not to pay the proceeds of the cheque across the counter.

The bank has a watertight defence of negligence on the part of the Karanjas. It is clear that Mrs. Mcmillan and Arthur whose facts were substantially similar. • My advise is based on the decision in London Joint Stock Bank Ltd V.000 to Hatari who completed the cheque and encashed it.” o An uncrossed cheque may be crossed generally or specially. • My advise to the bank is that there is no cause for alarm as the Karanjas have no sustainable claim against it if they were sue.82 Questions and Answers Revision • A Special Crossing consists of two parallel transverse lines on the face of the cheque with the name of the banker with or without the words “not negotiable. Karanja therefore owes the banker a duty of care when drawing cheques to avoid alteration. (c) • This problem is based on the obligations of the customer in a bankercustomer relationship. Karanja is equally negligent hence the loss. • Mr. o A cheque crossed generally may be crossed specially. Karanja has lost Kshs. The Karanjas have no one to blame other than themselves. LAW 1 . • It is evident that there is a banker-customer relationship between Karanja and the banker. Karanja is not only careless but negligent by signing blank cheques. 300. • In this case Mr.

Companies Act. tracing etc. • Was not a complete system. • Developed on the basis of the principal of fairness or justice. equity prevails. Consolidation: This is bringing together the provisions of several statutes to constitute one statute.Answers – Past Papers 83 MAY 2001 SUGGESTED SOLUTIONS QUESTION ONE (a) Codification: This is the bringing together of all rules or principles of law in a particular field to constitute a single statute for example the Sale of Goods Act Cap 31. practices of the • • • • Developed before equity Common law rights are enforced as of right • • • Developed on the basis of the writ system and stare decisis • If common law and conflict. Mwangi will be accused. Developed to mitigate the harshness of the common law Develop additional remedies e. it ordinarily relates to unwritten law. Equitable rights are discretional Developed after the common law. Cap 4. usages courts to supplement the and practices of the English common law. from customs. (iii) Simiyu’s action is based on Civil Law and Simiyu is referred to as the Plaintiff.g. For example. equity QUESTION TWO (a) STRATHMORE UNIVERSITY ● REVISION KIT . • Developed as a complete system of law. specific performance. 86 (b) (i) The action by police is based on Criminal Law. Common Law Equity • This is a branch of the Law of • This is a branch of the law of England which was developed England which was developed by by the ancient common law the various Lord Chancellor’s courts from customs. • It relates to written law. (ii) In this action. • Equity acts in personam • • Common law act is rem Developed usages and people. people. injunction.

not every custom is applicable as law. language and timing of arbitral proceedings. LAW 1 . • Civil cases: a local custom can only be relied upon by a court of law in the resolution of civil disputes. • Speed – it is a faster method of dispute resolution • Convenience – parties are free to determine the venue.84 Questions and Answers Revision Advantages of arbitration • Cheap – it costs less to see a case through arbitration • Flexibility – arbitral tribunals are not bound by previous awards or strict rules of procedure. unless the custom is a matter of public notoriety. • Repugnance to justice and morality: a custom will only be relied upon by a court of law if it is not repugnant to justice and morality. Time immemorial means that no living person can attest as to when the custom did not exist. • Privacy – arbitral proceedings are conducted in private free from undue publicity. • Immemorial antiquity: the local custom must have been observed since time immemorial. It must be consistent with the principle of justice. For a custom to be relied upon as a source of law. that is to say not by force or by stealth. nor at will. • Conformity with written law: a local custom must be consistent with statute law. A custom may be relied upon as a source of law in the determination of certain civil disputes. QUESTION THREE (a) • The phrase independence of the judiciary means that: . • Informality – free from legal technicalities which characterize ordinary courts. • Observance as of right: a good local custom is that which a community has observed openly and as of right. • Subject to or affected by: for a rule of custom to be relied upon as law one or more of the parties must be subject to it or affected by it. This is because parliament is the Supreme Law making body and has authority to render a rule of custom inoperable.There should be a distinct organ of government whose sole responsibility is administration of justice. it must: exhibit certain qualities: • Reasonableness: a good local custom must be reasonable. • Proof: the party urging the court to rely on a particular rule of custom must prove by evidence. However. (b) A custom is an embodiment of a principle of utility or justice that has commended itself.

Acts as a check on the other organs o government.This organ must administer justice without external interference and without fear or favour. • Is obliged to publish accounts • Share are freely transferable • Must hold the statutory meeting pursuant to section 130 (1) of the Companies Act. • • • • • • The person adopting must have attained the age of 25 or be at least 21 years older than the adoptee Must belong to the same race Must have lived with the adoptee for at least three months The adoptee must be infant The adopter must agree to be under the supervision of an adoption institution.Discourages tyranny and injustice .Enhances the liberty of man . • Partners share profit or loss equally • A partner who incurs loss or liability in the course of the firms business is entitled to indemnity • A partner who lends money to the firm is entitled to interest at the rate of 6% per annum • A partner is not entitled to interest on capital before ascertainment of profit • A person cannot be admitted as a partner without consent of all existing partners • Every partner is entitled to take part in the management of the firm’s business STRATHMORE UNIVERSITY ● REVISION KIT .Answers – Past Papers 85 This organ must be as impartial or unbiased or as disinterested as possible. . The adopter and the adoptee must belong to the same sex. • • (b) (c) QUESTION FOUR (a) These are the rules applicable in the absence of a partnership deed. . Independence of judiciary is an integral part of constitutionalism and services certain purposes: . The concept of independence of the judiciary is traceable to the doctrine of separation of powers propounded by Montesquieu.Promotes the rule of law Characteristics of the public company • Minimum a seven members but the maximum is unlimited • Must have at least two directors • Must obtain a certificate of trading in order to commence business.

This is LAW 1 • • • • . It therefore follows that Nabayi is bound by the clause as the company had done enough to bring the same to her notice. Partners are not entitled to remuneration for managing the firms business (b) Under section 39 of the Partnership Act. In this case it is clear that the transaction between Sauti Cleaners Ltd and Nabayi contained an exemption clause. she contracted a skin disease by reason of the chemical used by the cleaner. Graucob (1934). The answer to this question is in the affirmative. She cannot therefore sue the company for the garments. • If a partner has conducted himself in a matter prejudicial to the firm and his continued association is likely to bring the firms name into disrepute. The first question for determination is whether the exemption clause was an integral part the contract between Sauti Cleaners Ltd and Nabayi. This advice is consistent with the decision in L’Estrange V.86 Questions and Answers • • • • • Revision Differences in ordinary matters are resolved by a majority of the partners The firm can only change the nature of its business if all partners agree A partner cannot be expelled from the firm unless the power to do so is expressly vested on the partners. With regard to the skin disease my advise is that she has an action against Sauti Cleaners Ltd in damages for the suffering. However. a court may order the dissolution of a partnership on the following grounds: • If a partner has become a lunatic or is permanently of unsound mind • If a partner is continuously guilty of willful breach of the partnership agreement • If the firm’s business can only be carried on at a loss • If a partner is permanently incapable of discharging his obligations as a partner. QUESTION FIVE • • • This problem is based on exemption or exclusion clauses contracts. and hence was not aware of the exemption clause. • If it is just and equitable that the partnership be dissolved. It is also apparent that by reason of her poor eye sight Nabayi did not read the notice on the wall or on the back of the ticket given by Sauti Cleaners Ltd. My advise to Nabayi is that she has no claim against the company for the garment as the company had effectively exempted itself from liability for such damage and she was bound by the exemption clause. Partners have access to the firm’s books of account.

QUESTION SIX (a) Breach of contract entitles the innocent party to a remedy Remedies for breach of contract are either common law or equitable. The court’s discretion is however. • If contractual terms are contained in a document. • If the clause is ambigious. The court exercises discretion in determining whether or not to grant the remedy. Wallis. i. This rule of construction is referred to as Contra Proferentm.Answers – Past Papers 87 because chemicals used by dry cleaning companies must not be harmful to the users of clothing after cleaning. as was the case in L’Estrange V.e. V. In Halal Shipping Co. Kenya Lodges and Hotels Ltd. i. This is because signature Prima facie means acceptance. it is interpreted contra proferentes. uncertain or vague. Malborough Court Ltd. Graucob. It must be an integral part of the contract. Whereas a common law remedies are enforced as of right. (b) The effectiveness of exemption or exclusion clauses in contracts in determined by the following rules: • The clause must be incorporated in the contract. not exercises capriciously. and Lougher V. the plaintiff is entitled to the remedy if a breach of contract or loss are proved. i. the document itself must have been part and parcel of the contract. • A person can only take advantage of an exemption clause in contract. • An exemption clause cannot be given effect if to do is a fundamental breach or nables a party escape its fundamental obligation as was the case in Karsales (Harrow) Ltd.e. the exemption clause must be part of the written terms and if a party signs the document. it is bound by its terms. restrictively against the party relying on it. the remedy is generally not available. A belated notice of an exemption clause has not effect as was the case in Olley V. • If contractual terms are written.e.e. V. it is exercised on the basis of established principles of equity for example: • Doctrine of laches • Hardship of the defendant • Balance of convenience • Clean hands • Doctrine of mutuality Common law remedies STRATHMORE UNIVERSITY ● REVISION KIT . Securities Breme Allegementine it was held that the defendant could not rely on the exemption clause as it was not party to the contract. Its availment depends on the court. equitable remedies are discretional i. has provided consideration. if it is privy to the contract.

The plaintiff must prove the loss suffered and the amount awarded may be substantial or nominal. LAW 1 .88 Questions and Answers Revision • Damages: This is a monetary award by the court intended to compensate the plaintiff for the loss suffered. It manifests the equitable maxim that equity acts in Personam. • Appointment of receiver: This is a remedy available to debenture holders. • My advise to Mike is to sue the employer in damages for anticipatory breach as he has clearly intimated his intention not to honour his obligation on the due date. it is said to be too remote and is irrecoverable as was the case in Hadley V. Baxendale. The receiver protects and manages the security for the benefit of the debenture holder. distributed among the members. • Winding up: This is the legal process by which a company’s existence is brought to an end. • Tracing: this is a court order which enables a party to follow and recover money or goods which change hands in certain circumstances for example under a void contract. (b) • This problem is based on anticipatory breach of contract. It orders the defendant to honour his contractual obligation as previously agreed. • In this case it is evident that there was a legally binding agreement between Mike and the employer. Knight. liabilities ascertained and made good and the balance if any. QUESTION SEVEN (a) • This problem is based on exemption clauses as well as the conditions implied in sale of good contracts. It is either prohibitory or mandary and is generally awarded in circumstances in which money cannot adequately compensate the person. it assets collected in realized. • My advise is based on the decision in Frost V. • Rescission: This is an equitable remedy who essence is to restore the parties to the position they were before the contract. • Injunction: This is a court order which either restrains a party from doing or continuing to do a particular thing or compels a party to put right what it has wrongly done. If the plaintiff’s loss cannot be traced to the breach. Equitable remedies • Specific performance: This is a court order which compels a party to perform its part of the contract. The receiver may be appointed by the court on application or by the debenture holder in accordance with the terms of the debenture. The employers letter to Mike intimating that his services would not be required amounts to a breach of contract in anticipation for which Mike has an actionable claim.

to the seller or • He does something in relation to the goods which is in consistent with the ownership of the seller. which means that the seller must be ready and willing to give possession of the goods to the buyer for the price and the buyer must be ready and willing to pay the price in exchange for possession of the goods. My advise to Simiyu is that he has no action against Wheeler-Dealer as they had disclaimed liability and most important this was a second hand car which means that there was no implied condition that the same shall be of merchantable quality. A person is deemed to have an insurable interest if he stands to gain by its existence and stands to suffer prejudice in the event of attachment of risk. the buyer is deemed to have accepted goods if: • He signifies his acceptance. QUESTION EIGHT (a) Principal of insurance • Insurable interest: this is the financial or monetary or pecuniary interest which is at stake or danger if the subject matter is uninsured. Wheeler Dealer agreed to sell a second hand car to Simiyu at a particular price but at the same time disclaimed liability for the defective brakes and other defects. delivery of goods and payment of the price are concurrent conditions. (ii) • • • • • Put the goods into a deliverable state. (b) (i) • This section means that unless otherwise agreed. which he stands to loose in the event of attachment of risk.Answers – Past Papers 89 • In this case. Simiyu bought the car but did not subject it to any examination and hence the accident. There must be a STRATHMORE UNIVERSITY ● REVISION KIT . • He retains the goods after expiration of the stipulated or reasonable time without signifying his rejection. It is the interest which a person has in subject matter. It is apparent that Simiyu acquired the car on “as is where is” basis (cave at emptor) and cannot therefore sue Wheeler-Dealer. Deliver the goods the subject matter of contract Pass a good title to the buyer Supply goods of the right quantity Supply goods of the same quality Under section 36 of the Sale of Goods Act. • • My advise is based on the general law of contract and the provision of the Sale of Goods Act. • The effect of this section is to underscore the salient obligations of the parties to a sale of goods contract.

it means that after indemnity. Failure to disclose renders the contract voidable at the option of the innocent party. Abandonment: this is the unconditional surrender by the insured of the remains of the subject matter for indemnity in case of partial loss. If the loss is made good by one insurer. Boehm). It means that the insured should be restored to the position he was before the loss. • Duty of repair: the landlord is bound to repair the roof. It is a latent and inherent characteristic of all contract of indemnity. the insurer becomes entitled to all legal and equitable rights respecting the subject matter previously exercisable by the insured. Indemnity: means that when loss occurs it is the duty of the insurer to restore the insured to the position he was before the loss. The insured must notify the insurer of his intention of abandon and the insurer may accept the same or treat it as partial loss. (b) Duties of the Landlord • Put the tenant in possession: the landlord must handover to the tenant such means as will enable him enter into occupation. Utmost good faith: this is the principle of non-disclosure or uberrimae fidei. he pays more than his lawful share of the loss and is entitled to contribution from the other insurers. This principle is only applicable to property insurance.90 Questions and Answers Revision • • • • • • direct relationship between the insured and the subject matter and the insured bears any loss arising.e. Contribution and Apportionment: This twin principle of insurance is applicable where the insured has taken out more than one policy on the same subject matter and risk with different insurers. common passages and installations. apportionment. It operates after full indemnity. The insured surrender all documents of title to the insurer. It means that there should be no more and no less than restitutio in integrum. It is an integral part of subrogation and facilitates indemnity. Put in alternative. If risk attaches the insured can claim from all the insurers simultaneously whereby they share the loss between themselves i. LAW 1 . The duty of disclose is voluntary and exists throughout the negotiation period. Both parties are required to disclose material facts known to them (Carter V. Salvage: this is the recovery by the insurer of the remains of the subject matter after indemnity. Subrogation: means that after indemnity. It facilitates indemnity. main drains. The insurance contract is one of the utmost good faith. the insurer is put into the shoes of the insured. It entails the giving up of the rest by the insured for indemnity. • Ensure quiet enjoyment: The landlord must not interfere with the tenants enjoyment of the premises.

STRATHMORE UNIVERSITY ● REVISION KIT . Not to derogate from the grant Suspend or adjust rent: The landlord is obliged to suspend or adjust rent if the premises is damaged by causes other than the tenants negligence.Answers – Past Papers 91 • • • Grant Premises fit for purpose: The landlord must not in such a way as to render the premises unfit for the purpose for which it is given.

This is law made by parliament directly in exercise of the Legislative Power conferred upon it by the constitution. Agriculture Act. (c) • Ratio decidendi: o Literally means reason for decision. o May be relied upon by advocates in subsequent cases as persuasive authority. o They do not dispose off the case before the court and are not binding in subsequent similar cases. • Obiter dicta: o Literally means by the way. divorce. o It is only applicable in the determination of questions of Muslim Law on marriage. succession and personal statues. Private Members Bill: this is a bill mooted by a member of parliament which he introduces to the National Assembly for passage to law. • It is recognized as a source of Kenya by the Judicature Act. o It can only be relied upon in proceedings in which all parties profess Muslim faith. o It disposes off the case before the court. • • • Government Bill: this is a bill mooted by the government which it introduces to the National Assembly for debate and enactment of law. (b) • It is recognized as a source of law of Kenya by the constitution and the Kadhis Court Act. LAW 1 . o They reinforce or strengthen the decision of the court. for example The Childrens Act. Its limitations include: o It can only be relied upon in the determination of civil disputes. o It is the binding part in a precedent. o It comprises a group of fact situations with those of the instant case as minimum.92 Questions and Answers NOVEMBER 2001 QUESTION ONE Revision (a) • “Statute” means an Act of Parliament or Legislation. Public Bill: this is government or private members bill which seeks to amend or introduce law applicable throughout Kenya. o These are by the way statements made by a court in the course of judgement. o This is a principle or proposition of law based on the material facts of the case.

• Neither parliament nor courts of law can effectively control delegated legislation. QUESTION TWO (a) • A provision which authorizes the owner or any person acting on his behalf to enter upon any premises for purposes of taking possession of goods let under a hire purchase agreement. • It is contended that the rules tend to be very detailed and technical and are therefore difficult to comprehend. • A provision which relieves the owner from liability for acts or default of any person acting on his behalf in connection with the formation or conclusion of a hire purchase agreement. (d) Under the provisions of the Constitution the president is empowered to: • Grant pardon to a convicted person either free or subject to lawful condition. • Grant respite to a person indefinitely or for a specified duration of the execution of punishment imposed by a court of law. • A provision to the effect that any person acting on behalf of the owner in relation to the formation or conclusion of the hire purchase agreement is deemed to be the agent of the hirer. • This source of law receives minimal publicity if any. • A provision which imposes greater liability upon the hirer for terminating the hire purchase agreement than is imposed by section 12 (1) of the Act. • Remit the whole or part of a punishment imposed on a person for an offence.Answers – Past Papers 93 (d) • It is argued that delegated legislation is not as democratic as statute law in that it is not always made by representatives of the people. (b) STRATHMORE UNIVERSITY ● REVISION KIT . The rules are to a large extent unknown. • A provision which relieves the owner from liability for such entry. • A provision which restricts or denies the hirers right to terminate the hire purchase agreement. This compounds the problem of control. • Delegates often sub-delegate law making powers to other persons which may lead to abuse of power. • Remove the whole or part of the disqualification of a person imposed by a court of law under the National Assembly and Presidential Elections Act. • Substitute a less severe form of punishment for a punishment imposed on a person for an offence.

which provide inter alia that in such a case. Unless the partnership deed otherwise provides. • Mutual consent. o The hirer is discharged from all liability under the agreement. o It is reasonably necessary for performance. If all partners agree. The fundamental question is whether Malipo Rahisi Ltd was entitled to reposses the goods on account of Kinyago’s default. • Death of a partner. In this case the contravention of the provisions of the Act attract certain consequences: o The hire purchase agreement is terminated. • Lapse of time-if the duration is fixed. 2 The answer is in the negative as Kinyago has already paid of the 3 hire purchase price. QUESTION THREE (a) • Performance of the undertaking. • At will: . In this case Kinyago had paid of the hire 3 purchase price but Malipo Rahisi Ltd repossessed the goods. o It is effected with the principals knowledge. o The guarantor is entitled to recover by action from Malipo Rahisi Ltd. o In cases of emergency.” This maxim does not apply where o The sub-delegation is authorized by the contract between the parties. all sums paid under the contract of guarantee or under any security given. o Kinyago is entitled to recover by action all sums paid under the agreement or under any security given. • Bankruptcy of a partner. o It is authorized by trade usage or custom. The repossession of the goods by the company is incontravention of the provisions of the Hire Purchase Act. (c) • This maxim literally means that “delegates must not delegate.94 Questions and Answers Revision • • • • • This problem is based on repossession of goods by the owner in a hire 2 purchase agreement. • Charging of a partners by a court order for a private debt. o It is authorized by law. • Illegality: if the firms business becomes illegal by reason of change of law. the goods cannot be repossessed otherwise than by court action.a partner notifies the others of his intention to have the firm dissolved. LAW 1 . Completion of the undertaking. Unless the partnership deed otherwise provides.

o Cases of res sua: the subject matter belongs to the party purporting to purchase the same (Bingham V. • A partner who makes a secret profit without the consent of the other partners must account to the firm. Each party appreciates the others intention and accepts the same. • Thereafter. Both parties make the same mistake. Bingham). QUESTION FOUR (a) Mistakes of fact which affect the validity of a contract are referred to as operative mistakes. The purported agreement is void. • Unilateral mistake: this is a mistake as to the identity of the other party to the contract. Beth is entitled to sue for an account of all the profits obtained by Becky from the other business. It is illustrated by inter alia the decision in Couturier V. • Since Becky has refused to observe utmost fairness. The parties are at cross purposes or misunderstand each other. There is no agreement between them for want of Consensus ad idem. • A partner who has a personal interest in a contract made by the firm is bound to disclose the same to the other partners. Common mistake renders a contract void in two circumstances. Cap 31. (c) • This problem is based on the principle of utmost good faith in partnerships. but both are mistaken about an underlying fundamental fact. • Mutual Mistake: this is a mistake as to the subject matter. The law recognizes various types of operative mistakes for example: • Common or shared mistake: this is a mistake as to the existence or ownership of the subject matter. Beth can apply to the court for the partnership to be wound up on the ground that it is just and equitable. • Each partner is entitled to utmost fairness from the partners.Answers – Past Papers 95 (b) • A partner may not engage in a competing business without the consent of other partners. It arises in circumstances in which a fraudulent STRATHMORE UNIVERSITY ● REVISION KIT . Wichelhouse illustrates this principle. • The principle of utmost good faith manifests itself in partnerships in various ways for example a partner may not engage in a competing business without the consent of other partners. o Cases of res extincta: the subject matter does not exist. Hastie. The decision in Raffles V. • A partner can only be expelled from the firm in good faith. • In this case Becky opened a new shop without Beth’s consent which is contrary to the principle of utmost good faith. This scenario is embodied in section 8 of the Sale of Goods Act.

• My advise is based on the decision in Crown V. exemplifies this type of mistake.96 Questions and Answers Revision • • person misrepresents his identity so as to obtain goods on credit or other favourable terms which he promptly sells to an unsuspecting third party or a bonafide purchaser. • My advise to Ole dume is that he cannot successfully claim the reward. signing the wrong contract. Lindsay and Co. Mistakenly signed documents: this is a mistake as to the nature of the contract i. Ole dume must have been aware of the reward and given the information so as to claim it. • It is clear that Ole dume gave the information while unaware of the reward. It must be evident that: o The seller dealt with a person other than the person intended. A registered company has no capacity to enter into transactions beyond the objects prescribed by the memorandum of association. for example an infant has no capacity to enter into money borrowing transactions. Clark whose facts were substantially similar. (c) • This problem is based on acceptance of offers by the offeree. • Not every person has capacity to enter into any contractual relationship. • A contract entered into by a person with no capacity to contract is unenforceable. which means that he was not actually accepting the offer as he gave information for a different reason. In this case Inspector Sniff made the offer to any one who volunteered the requisite information. Such a mistake renders the contract voidable at the option of the innocent party. The dispute is ordinarily between the original seller and the bonafide purchaser. This is because one of the Cardinal Principles of acceptance is that the offeree must have been aware of and intended to accept the offer i. Mistake as to quality of subject matter: such a mistake renders the contract voidable at the option of the innocent party. A person of unsound mind has no capacity to contract.e.e. • In this case there is no Consensus ad idem between Inspector Sniff and Ole dume. o The identity of the person the seller intended to deal with was fundamental to the contract. LAW 1 . (b) • This is the legal ability of a party to enter into a contractual relationship. The decision in Cundy V. o The person dealt with was aware of this fact. The goods or their value are recoverable if the original seller demonstrates that the contract between him and the fraudulent person was void for unilateral mistake.

• The principle in this rule is that a person who for his own purpose brings on his land and collects and keeps there anything likely to do mischief if it escapes does so at his peril and is prima facie answerable for all the damage which is the natural consequence of its escape. (b) • There must be a dorminant and servient tenement. (c) This problem is based on the ways in which the landlord or lessor may terminate a lease: • Lapse of time: wait for effluxion of the duration prescribed. there must be a capable grantor or grantee. • Forfeiture: Wamalwa is entitled to re-enter the premises to determine the lease pre-maturely by reason of Karanja’s breach. o Things must have escaped. • Transfer to a third party. • This principle was formulated in Rylands V.e.e. becomes vested in one person. conversion of a joint tenancy to a tenancy in common. • The easement must be capable of forming the subject matter of the grant e. Plaintiffs Consent or benefit: the plaintiff cannot complain of the escape if he benefits from the accumulation or expressly or implied consented to it. • The dorminant and servient tenements must be owned or occupied by different persons. (ii) • • Statutory authority: this is a complete defence if the accumulation of the thing was statutorily sanctioned. • For this rule to apply. • Severance i. o Things must be capable of causing mischief if they escape. QUESTION SIX (a) (i) • This is the rule of strict liability or liability without fault. • Union in sole tenant i.Answers – Past Papers 97 QUESTION FIVE (a) • Partition of the property concerned by mutual consent. • The easement must accommodate the dorminant tenement. certain conditions are necessary: o Non-natural user of land o Bringing. STRATHMORE UNIVERSITY ● REVISION KIT . Fletcher where an employer was held liable for the negligence of an independent contractor. o Interference with the plaintiffs use of his land.g. collecting and keeping things.

LAW 1 . Act of God: this defence may be relied upon if the escape is wholly attributable to natural causes. Strangers or third parties: the defendant is not liable if the escape was occasioned by an unforeseen act of a stranger. Its effect is to reduce the amount payable as damages.98 Questions and Answers Revision • • • Contributory negligence: this defence is available to the defendant if they plaintiff contributed to the escape. The circumstances must be such that human foresight could not have recognized the escape as a possibility.

• There must have been delivery to the beneficiary. • Under the Provisions of the Occupiers Liability Act. It is clear that Anne made an oral will by which she bequeathed all her property to her mother who died in a road accident on her way home from hospital and Ann later learnt of the death. My advise is consistent with the provisions of the Occupiers Liability Act. Cap 34. Lovejoy) Marriage: the subsequent marriage of a testator revokes any will made. • The circumstances must show that gift was intended to revert to the donor should he survive the illness or danger. the occupier must not injure the trespasser. it is evident that Jambazi is a thief and that’s why he sneaked into Cassman Greens compound. The destruction must be coupled with an intention to revoke the will. an occupier owes no common duty of care to trespassers. (Cheese V. • The donor must have given the beneficiary a movable asset including a debt. He has no one to blame. (c) • This problem is based on the validity of oral wills. • The beneficiary must survive the donor. otherwise disposable by will. STRATHMORE UNIVERSITY ● REVISION KIT . • Under the Provisions of the Occupiers Liability Act. Destruction: this is the burning. However. the property or documents of title. • My advise to Jambazi is that he has no actionable claim against Cassman Green for the injuries as Cassman Green owes him no common duty of care. (b) • The donor must have contemplating death either by reason or a present illness or present or imminent danger. unless the will is made in contemplation of the particular marriage.Answers – Past Papers 99 (b) • The legal principle applicable in this case is whether an occupier owes a common duty of care to a trespasser. • In this case. He is for all purposes a trespasser. leaving or otherwise destroying the will. QUESTION SEVEN (a) • • • Another will or codicil: this will or codicil must manifest the testators intention to revoke the previous will or codicil. • The donor must not survive the illness or danger. an occupier owes all invitees a common duty of care to ensure that they are reasonably safe in using the premises for purposes for which they are invited or permitted to be there.

100 Questions and Answers • •

Revision

Since Anne is still alive and has capacity to make another will to revoke the former she is entitled to do so. In any event the intended beneficiary is dead. My advice to Ann is that she is legally entitled to make another will bequeathing her property to another person.

QUESTION EIGHT (a)

• • • • •

Take delivery: the bailee is duty bound to take delivery of the goods the subject matter of the contract. Reasonable care: the bailee is obliged to take reasonable care of the goods. He is not liable for ordinary wear and tear. Ordinary manner: the bailee must deal with the goods for the particular purpose for which the goods are bailed. Insurance: it is the duty of the bailee to insure the goods for the duration they are in his custody. Return the goods: the bailee must return the goods to the bailor as soon as the purpose for which they were bailed is accomplished.

(b) • If the agent has exercised his authority in full. • If the agent has incurred personal liability. • If the agents authority is coupled with interest. (c) • This problem is based on the liability of the principal for transactions entered into by the agent. • As a general rule the principal is liable on contracts entered into by the agent within the scope of his authority. • In this case it is implicit that Emmah had previously collected monies from Mrs. Cool having dealt with her on behalf of Mrs. Mutua. Hence she had authority to accept payment on behalf of Mrs. Mutua. • Since Mrs. Mutua did not notify Mrs. Cool of the dismissal of Emmah as an agent, Mrs. Cool was discharged on payment to Emmah. Mrs. Mutua has no actionable claim against Mrs. Cool as payment to the agent discharges the 3rd party if the agent has authority to accept payment.

LAW 1

Answers – Past Papers 101 MAY 2002 SUGGESTED SOLUTIONS QUESTION ONE (a) (i) Reasons for delegated legislation • Lack of parliamentary time: parliament has insufficient time to legislate on all matters be they national or otherwise. By delegating some of its law-making authority, parliament can save time to solve much more pressing problems. • Speed the procedure of law making in parliament is slow and parliament is not always in session to cope with any emergency or urgent problem that may arise. The alternative to dealing with such a situation is to delegate some powers to a competent authority. • Technicality of subject matter: sometimes the proposed legislation is so technical in nature that it demands an expert to handle it. Since parliament is essentially a general body, rather than a body of experts, such legislation can best be dealt with by a minister assisted by experts in the area of the proposed legislation. • Flexibility: Law making by parliament is field to rigid provisions of the constitution and the National Assembly Standing Orders, and if a situation arise which necessitates the immediate repeal or amendment of an Act, it has to be effected through this procedure. A quicker way would be to have the ministerial rule or regulation in question withdrawn or amended by the minister who issued it. (b) • Criminal and civil law Criminal law: this is the law of crimes or offences. A crime is often defined as an act or omission, committed or omitted in violation of public law. It is a contravention of state law and suspects are generally arrested and prosecuted by the state. Civil law: this is law concerned with rights, duties and powers of parties in ordinary transactions and include Law of Contract, Law of Torts, Law of Marriage, Law of succession, Law of Property. - A person whose rights have been violated is said to have a cause of action i.e. reason to sue, for example breach of contract, negligence, defamation battery, assault, conversion. - The innocent party institutes proceedings against the alleged wrongdoer and prosecutes the same. • Substantive and Procedural law Substantive law: consists of the rules themselves as opposed to the procedure on how to apply them. - It is concerned with the rights and duties of parties and provides remedies, for example law of contract, law of torts, law of STRATHMORE UNIVERSITY ● REVISION KIT

102 Questions and Answers

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succession. It defines offences and prescribes punishment for example penal code. Procedural law: consists of the steps or guiding principles or rules of practice to be complied with in the application of substantive law. It is often referred to as adjectival law. It is the hand maiden of substantive law. Examples include Criminal Procedure Code Cap 75, Civil Procedure Act, Cap 21. • National and International Law National law: this is municipal or state law and consists of all rules of law operational within the boundaries of a given country. It generally regulates relation between citizens and the state and citizens inter se. It originates from acts of parliament as well as customary and religious practices of the people. International law: this is a body of rules which regulates the relation between states or countries and other international persons for example the United Nations. International law is based on international agreements or conventions or treaties and customary practices of states. QUESTION TWO (a) Court of Appeal Composition Judges of this court are referred to as “judges of appeal” and are the Chief Justice and such other number not less that 2 as may be prescribed by the parliament. Currently the number is 8. Jurisdiction It is primarily an appellate court with jurisdiction to hear criminal a civil appeals from the High Court, however, it exercises limited original jurisdiction in that it has jurisdiction stay the execution of an order of the high court pending on appeal and can punish contempt of court. In • • • • addition it has jurisdiction to: Receive additional evidence Decide a case with finality To frame issues for the determination of another court. To order a retrial.

Decisions of the Court of Appeal are final and bind those of other courts in similar cases. (ii) Repeated question 2 (b) Nov. 1999 replaced with a new question What is the composition and powers of the Kadhis court

LAW 1

Answers – Past Papers 103

Composition The court is duly constituted when held by the chief kadhis or a kadhi duly appointed by the judicial service commission. Jurisdiction It exercises original jurisdiction in civil cases only. Under section 66(5) of the constitution and section 5 (1) of the Kadhi court Act, its jurisdiction is limited to the determination of question of Muslim law on marriage, divorce, succession, and personal status in proceedings in which all parties profess Muslim faith. However, the court has no exclusive jurisdiction to hear such cases. Other courts have jurisdiction. The evidence applicable is governed by Islamic law all witnesses must be heard without discrimination. A decision of the court may be appealed against in the High Court. i) High Court: Only the highcourt has jurisdiction to hear a murder trial. ii) Kadhis Court High Court Resident Magistrates Court District Magistrates Court. These courts have jurisdiction to hear the case. iii) High Court Appeals from the chief magistrate court can only be heard by the high court. QUESTION THREE (a) (i) • • • • • Unless otherwise agreed, the place of delivery is the sellers place of business if any, if not, his residence. If specific goods, the subject matter of the contract are in some other place known to the parties, that other place is the place of delivery. If the goods are in the hands of a third party, delivery is complete when the third party acknowledges to the buyer that he holds the goods on his behalf. If the seller is bound to transmit the goods to the buyer, he must do so within the stipulated or reasonable time. Unless otherwise agreed, the cost of and incidental to putting the goods into a deliverable state is borne by the seller.

(ii) Under the provisions of the Sale of Goods Act, the unpaid sellers lien is exercisable if: • If the buyer becomes insolvent • If the goods have not been sold on credit • If the goods have been sold on credit but the term of credit has expired

STRATHMORE UNIVERSITY ● REVISION KIT

104 Questions and Answers

Revision

(b) • This problem is based on sale of goods by auction in lots • Ndolo bid for the goods in the mistaken belief that he bidding for all lots and the hammer fell. The auctioneer reserved only one lot for him. • My advise to Ndolo is that he has no actionable claim against Fagia Auctioneers Ltd. This is because the auctioneers have acted in accordance with the law. Under the provisions of the Sale of Goods Act where goods are put up for sale by auction in lots, each lot is prima facie deemed to be the subject of a separate contract of sale. • My advise is based on the provisions of the Sale of Goods Act. QUESTION FOUR (a) • • If the principal does not exist or has no capacity. If he expressly or impliedly personal liability. The third party may when contracting with an agent, create a condition that the agent should be personally liable on the contract, and if the agent agrees he will be personally liable for any breach of contract. If the custom of that particular trade makes him liable as in the case of del credere agent. If he signs a negotiable instrument in his own name without making clear, on the face of the document that he is signing as an agent. If he executes a deed in his own name, or while purpoting to act as an agent when he is actually acting on his own behalf, or if there is no principal in existence. If the agent acts for a concealed principal, if he so desires. A concealed of the principal use the principal if he desires. A concealed principal is one whose existence or identity is not disclosed by the agent at the time of entering into a contract. In this case, the third party and the agent become liable to each other on the contract. If the agent had exceeded his authority.


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(b) • This problem is based on the liability of the principal in an agency of necessity. • In this case it is apparent that Kariuki was Rajus agent for the purpose of transporting the fish to Nairobi. It is also evident that the heavy rain created an emergency and it was impossible for him to seek instructions from Raju, he had to act in good faith as owner thereof. • In the circumstances of the case, Kariuki became an agent of necessity and acted bona fide to safe guard the fish. Raju is therefore bound to reimburse Kariuki the flight charges. • My advise to Kariuki is to sue Raju fro the charges, as he had presumed authority to incur the same. • My advise is based on the decision in Great Northern Railway Co V. Swaffield.

LAW 1

As a general rule. In strict legal sense acceptance takes place when the offeree mentally accepts the offer as that is when the minds for the parties meet. An offer must be clear and definite and must be communicated to the offeree. It may be express or implied from the conduct of the offeree. May be general or specific (Carlills case). However. This is because an agreement is unenforceable unless the parties to it so intended hence intention is one of the elements of a contract.Answers – Past Papers 105 QUESTION FIVE (a) • Offer An offer has been defined as unequivocal manifestation by a party of its intention to contract with another party. corporation and undischarged bankruptes. every person has capacity to enter into any contract. the law of contracts restricts or limits the contractual capacity of certain categories of persons such as infants or minors. persons of unsound mind. Legality The purpose for which an agreement is entered into must be lawful. It is clear intimation of intention to contract. It is the bargain element of the contract. drunken persons. (b) STRATHMORE UNIVERSITY ● REVISION KIT . a simple contract is unenforceable unless supported by some consideration. It is an act or promise offered by one party and accepted by the other as the price for that others promise. Acceptance of an offer creates an agreement between the parties. Acceptance This is the external manifestation of assent by the offeree. Consideration is one of the basic elements of a contract. Capacity This is the legal ability of a party to enter into a contractual relationship. It is nothing but mutuality. Intention An agreement must be characterized by an intention in the part of the parties to create a contract. A contract to promote an unlawful purpose is unenforceable. The party that manifests the intention to contract is the offeror and the party to whom it is made is the offeree. • • • • • Consideration At common law. Whether or not parties intended to create a legally binding agreement is a question of fact. Both parties must have intended to create a legally binding agreement.

It was held that the contract was void and hence unenforceable as it was contrary to public policy. A contract may be frustrated by destruction of subject matter. • • • LAW 1 . death and permanent incapacitation. Secondly the promise by Tajiri to Marry Jacinta should his wife die is unenforceable as it is void for being prejudicial to the status of marriage. My advice to Jacinta is that she has no actionable claim against Jackson or Tajiri as the contracts between her and them are unenforceable as they are contrary to public policy.106 Questions and Answers • • Revision • • • This problem is based on contracts prejudicial to the status of marriage. It only entitles the innocent party to treat the contract either as repudiated or subsisting. In this case the contract between Jackson and Jacinta under which Jackson was supposed to introduce Jacinta to Tajiri at a fee of Kshs 10. discharge by performance was only possible if parties performed their obligations precisely and exactly. it is bound to perform its part.000. At common law. This is the common law doctrine of “precise and exact. Contractual terms had to be observed to the letter. non-occurrence of an event. It is justified on the premise that whatever is created by agreement may be extinguished by agreement. state intervention. Powell). The parties are discharge from performance. If it treats it as repudiated. a married man promised to marry the plaintiff after the death of his wife who was then ill. When contract is frustrated. Discharge of performance A contract is discharged by performance when both parties dutifully perform their obligations. However. Each party has performed its promise. QUESTION SIX (a) • Discharge by agreement A contract is discharged by agreement when the parties thereto agree to discharge it. it is terminated. if it treats it as subsisting.” (Cutter V. is a marriage brokerage contract and is void for being contrary to public policy. Cartiley (1908) where the defendant. it is not bound to perform its part. If the term breached is fundamental. Discharge by impossibility or doctrine of frustration A contract is said to be frustrated when performance of the contractual obligations is rendered impossible. My advise is based on Wilson V. The plaintiff was at all material times aware that the defendant was married. Discharge by agreement may be bilateral or unilateral. Discharge of breach Breaching of contract does not discharge it. illegal and commercially useless by reason of extraneous and unforeseen factors for which neither party is to blame. It can only treat the contract as repudiated. illegality. Breach of contract may be anticipatory breach or actual breach.

the oral contract is terminated by operation of law as it has been swallowed up by the latter. Mary is entitled to the Kshs. • (b) • This problem is based on frustration of contract. QUESTION SEVEN • Blank endorsement This is an endorsement which does not specify the person to whom or to whose order the bill is payable. the bill is payable. when a contract is frustrated any money paid is recoverable.g a bill endorsed “pay x only”. Lapse of time If parties to a contract specify the duration of their relationship. the contract terminates on expiration of the duration. 100. • It is apparent that the destruction of the car by fire frustrated the contract between Mary and Janet and thereby discharged the parties as neither of them was blameworthy. • Whereas the banker is bound to exercise the standard of care and skill of a reasonably competent and careful banker. • My advise to Janet is that there is no cause of alarm as there is no breach of contract.000 deposit. for example indemnity contracts of insurance last for one year. Janet must refund the same. the deposit of Kshs. Special endorsement This is an endorsement which specifies the person to whom or to whose order. Restrictive endorsement This is an endorsement which prohibits further negotiation of the bill e. It’s effect is to convert the order bill into a bearer bill. 100. Conditional endorsement This is an endorsement by which the endorser makes the payment of the bill subject to a condition or conditions or limits or exempts himself from liability if the bill is not honoured. Under the Act.Answers – Past Papers 107 • Merger If the terms of an oral contract are incorporated in a subsequent written agreement between the parties. However. However. the customer is bound STRATHMORE UNIVERSITY ● REVISION KIT .000 paid by Mary is recoverable. This gives the right to the endorse to claim payment on the bill but prohibits him from transferring the right of payment to anyone else. • My advise is based on the provisions of the Law Reform (frustrated contracts) Act 1943 which deal with the adjustment of rights of parties when a contract is frustrated. • • • (b) • This problem is based on the obligations of the banker and the customer.

. granted that Alex had not discovered the loss of his chequebook. • To deliver the goods to the right person at the right place. In this case there was a banker and customer relationship between Alex and Pesa Bank and each owed the other the respective duties. however.He is not liable from any loss or damage caused by the enemies of Kenya with which the country is at war. It is evident that there had been three unauthorized withdrawals from Alex’s account through the forging of his signature by Charles but the facts do not indicate how long Alex’s cheque book has remained stolen as this would determine whether the bank is liable. • To deliver the goods on the completion of the transit to the consignee within a reasonable time. then the bank is liable to credit his account with the total sum withdrawn by charles. • A common carried like the hotel proprietor.108 Questions and Answers Revision • • • • to notify the banker of any irregularities affecting his account promptly. . But he is not bound to transport such goods as he does not profess to carry or those exposing him to extraordinary risk. Alex does not appear to have reported the loss of his cheque book to the bank having broken his duty to the banker he cannot argue that the bank is liable to reimburse him. However. is an insurer of goods accepted by him for onward journey and is liable to make good all loss or damage whether caused by his negligence or not. LAW 1 . as it was presumed to know Alex’s signature. If a carrier delivers goods to the wrong person.He is not liable if the loss or damage is due to an act of God.He is not liable for loss caused directly through negligence of the consignor for example through defective or improper packaging. . ii) Whether Alex had discovered the loss of cheque book. is subjected to the following exceptions. he may be liable to pay damages unless the delay is inevitable due to some unforeseen circumstances. QUESTION EIGHT (a) • To accept and carry goods of any person on payment of the reasonable charges of hire. .He is not liable for loss which arises from inherent defects in the goods carried. The rule. he can act as an agent of necessity in disposing of them at the best available market place. Where he causes unnecessary delay. It therefore follows that the legal position of Pesa Bank depends on: i) The duration between loss of the cheque and notice of the unauthorized withdrawal to the bank. If the goods face unavoidable deterioration in the course of transit. provided there is room in his vehicle. • To carry goods in his customary manner without unnecessary delay or deviation. he will be liable incase he departed from the ordinary course of business practices.

• The existing and future means and needs of the dependant • Whether the deceased had made any advanced or gift to the dependant • The conduct of the defendant in relation to the deceased. STRATHMORE UNIVERSITY ● REVISION KIT . • The situation and circumstances of other dependants any beneficiaries of the will if any. • The general circumstances of the case including so far as ascertainable the reasons for not providing for the dependant. it is ordinarily underinsured. capital or income from any source of the dependant. • The subject matter is said to be double insured by over insurance.Answers – Past Papers 109 (b) Double insurance This is a situation where an insured takes out more than one policy on the same subject matter and risk with different insurers but where the total sums insured exceeds the value of the subject matter. The only advantage of this type of insurance is that if one of the insurers is insolvent when risk attaches the insured can enforce his claim against the solvent insurer. (c) • The nature and amount of the deceased property • Any past. If a subject matter is double insured. present or future.

whereas law may be imposed on the citizens. it regulates the conduct of all persons irrespective of their racial. According to Austin. statute law is a manifestation of the wishes of the people. LAW 1 . Law has also been defined as a coercive instrument for regulating social behaviour. prescribed by human beings for the obedience of human beings. It is generally true to assert that law regulate human conduct. In our view. Law is an aggregate or conglomeration of rules enforced by courts of law. This is because parliament is the supreme law making body. Law may be a product of the people. hence its law is superior.e. Arguably. religious or political back ground. It has been defined as a set of binding rules of human conduct. Observance as of right: a good local custom must have been observed openly and as of rights i. not by force or by stealth nor at will. this statement is a general description of the term law. Conformity with statute law: a local custom must be consistent with statute law. Time immemorial means no living person can attest as to when the custom did not exist. (c) • • Democratic in nature: parliamentary law making is the most democratic approach to legislation. namely that it is a body of rules for the guidance of human conduct and is enforceable. According to Salmond. Immemorial antiquity: a local custom must have been observed since time immemorial. Uniformity: statute law applies indiscriminately. law consists of a body of principles recognised and applied by the state in the administration of justice. But Marxist postulate the theory that law serves the interests of the dorminant classes in society. Arguably therefore. consistent with the principle of justice. • • • • Reasonableness: a good local custom must be reasonable i. law consist of commands of a superior who has power to impose sanctions for compliance. law may be imposed on the citizenry. The assertion that law is enforceable is true and correct as this distinguishes rules of law from other norms.110 Questions and Answers NOVEMBER 2002 – SUGGESTED SOLUTIONS QUESTION ONE (a) • • • • • Revision • • (b) This exposition of the term law captures its essential ingredients. This is because parliament is composed of representative of the people. this is not always the case. However.e.

Imputation of crime. Resolution of legal problem: statute law enable society resolve legal problems as and when they arise by enacting new statutes or amending those in existence. economic. QUESTION TWO (a) • Defamation is the publication of a statement. this is defamation by spoken word or gestures. sign. • • • (b) STRATHMORE UNIVERSITY ● REVISION KIT . It is a mere tort. Libel is actionable per se i. parliament provides the necessary regulation framework. which reflects on a persons reputation and tends to lower him in the estimation of right thinking members of society generally. the plaintiff need not prove loss or damage. It has also been defined as a statement calculated to injure the reputation of another person by exposing him to hatred. General application: statute law consists of general principles applicable at different times and circumstances. It is published in Kenya gazette as Bill and as Law. . It is trancient or temporal in character. It also attracts media attention. statute law is the most widely published. contempt or ridicule. It is both crime and a tort. and tend to make them shun or avoid him. this is a defamatory representation in some permanent form for example publication in a newspaper. Every person has a reputation. pictorial illustration. To impute that one is suffering from an infectious disease. .Answers – Past Papers 111 • • • • Dynamic: statute law enable the society to keep pace with changes in other fields for example. libel or slader. This tort protects a persons reputation from unlawful interference. To impute that a woman is unchaste or has commited adultery. o Libel. social or political.e.Imputation of unchastity. Defamation is either. The meaning of the word privilege is that a person stands in such a relation to the fact of the case that he is justified in saying or writing what would otherwise be slanderous or libelous. Publicity: compare to other sources of law. By enacting statutes. However.Imputation of unfitness or incompetence. Loss or damage must be proved. plaintiff has committed a criminal offence. It is generally not actionable per se. slander is actionable per se in the following circumstances: .Imputation of disease. . o Slander. Parliament does this when the legal problem manifests itself.

if goods are bought by description from a person who deals in such goods. there is an implied condition that the goods shall be of merchantable quality. • The opinion is based on facts. • Statements by an offices of state in the course of official duty even if related to commercial matters. in a sale by description there an implied condition that the goods shall correspond the description and if by description and the sample the bulk shall correspond with the sample and description Fitness for purpose: Under section 16 of the Act. • The statement was not maliciously made. Under section 17 of the Act. • Statements made in professional communications between advocate or client. every communication irrespective of its being false or malicious is protected. it is implied that the seller shall have the right to sell the goods when property is to pass. LAW 1 . Merchantable quality. (c) For the defence of fair comment to be sustainable it must be evident that: • The matter commented was one of public interest. in a sale by sample there is an implied condition that: . a person is entitled to communicate a defamatory representation. In the case of qualified privilege. Sale by description: under sec 15 of the Act. there is an implied condition that the good shall be reasonably fit for that purpose. . Occasions of absolute privilege include. • Communication between husband and wife. In case of absolute privilege. • Statement made in parliament by a member • Statements in parliamentary papers published by the order of parliament.112 Questions and Answers Revision Privilege may be absolute and qualified.The goods shall be free from any defect rendering them unmerchantable.The bulk shall correspond to the sample in quality . Sale by sample. • Statements made in court in the course of judicial proceedings. if the buyer makes known to the seller the particular purpose for which the goods are required so that he relies on the sellers skill and judgement.The buyer shall be afforded a reasonable opportunity to compare the bulk and the sample. • The statement was an opinion not as assertion of fact. QUESTION THREE (a) • • • • • Right to sell: under sec 14 (a) of the Act. under sec 16 (b) of the Act.

Sale under voidable title: a seller with a voidable title sells before his title is voidable. in a sale by sample. • • • • • • • • • Estoppel: Where the true owner holds out another person as owner and third parties rely on the representation to their detriment. Resale by seller in possession: this exception is embodied in section 26 (1). a condition may be implied by trade usage or custom. Sale by court order: a sale made pursuant to an order of a court of competent jurisdiction. But on examination the bulk did not correspond with the sample. Sale in market overt: this is an open. Sale by factor or Mercantile agent: Such a sale passes a good title. • Ben is therefore entitled to recover the amount paid to Sally. • Under the provisions of the Sale of Goods Act. Sale by buyer in possession: this exception is contained in section 26 (2) of the Act.Answers – Past Papers 113 • (b) Trade Usage or custom: under section 16 (c) of the Act. Sale under statutory power: a sale made in exercise of a statutiory power. there is an implied condition that the bulk shall correspond with the sample in quality and that the buyer shall be afforded a reasonable opportunity to compare the bulk with the sample. • In this case Ben paid for the goods before he had an opportunity to examine them. • The legal position is that Ben is entitled to reject the goods as Sally has breached the implied condition that the bulk shall correspond with the sample in quality. QUESTION FOUR (a) Pledge • This is a pawn • Mortgage • Mortgage is the conveyance of land or assignment of a chattel as security for the payment of It is the delivery of goods by a debt or the discharge of some debtor to a creditor as a security other obligation for which it is STRATHMORE UNIVERSITY ● REVISION KIT . public and legally constituted market. Sale under common law power: a sale made in exercise of a common law power. (c) • This problem is based on sale of goods by sample.

A pawn is generally redeemable by payment of the amount due to the Pawnee. • given. Every pledge is redeemable within 6 months. There is conveyance of the land to the mortgagee. • • • • • The pawnor is entitled to redeem the goods pawned within the stipulated time or if no time is fixed. • There is delivery of possession from the Pawnor to the Pawnee. This power arises as soon as the legal date for redemption has passed. any excess obtained by sale must be handed over to the pawnor. within a reasonable time after demand for payment has been made. with seven days of grace olded. with seven days of grace olded. However. or more LAW 1 . the pawnbroker has a right to sell the articles pawned. • The creditor acquires possession while the debtor retains ownership • (b) Characteristic of a pledge. Revision Mortgage involves the use of land as security for a loan. • If the pledge is destroyed by fire. The interest of the borrower in the property is vested in mortgagee. pledges pawned for sixty shillings or less become the property of the pawnbroker. • • Its salient feature is delivery of possession. (c) (d) • • Fore closure: this is a court order which extinguishes the borrower’s equitable right to redeem the property. the pawn broker is bound to pay the value of the pledge after deducting the amount of the loan and interest. or o Interest on the loan is in arrears for two months. However. • The right of ownership is the goods pledged as a security remains in the pawnor. Statutory power of sale: this is the right of the mortgagee to sell the security.114 Questions and Answers for the amount borrowed or advanced to the debtor. • A pledge is redeemable within six months. If the pawnor does not redeem. The mortgagor’s right of redemption is a critical component of a mortgage. the following conditions must be satisfied: o A three months notice must have been served on the mortgagor requiring payment of the outstanding loan and such notice has expired. After this period.

City of London Brewery (1889) that a mortagee who takes possession must account to the mortgagor for any loss to property caused by his default. Revocability: a will is revocable by the testor at any time when he has capacity to make it. a will may be made either orally or in writing. an oral will made by a member of the armed forces or merchant marine during a period of active service remain valid after three months provided death occurs during the same period of active service. Possession of security: this power is rarely exercise because of the rule in White V. the receiver is appointed to receive all the income from the land to repay the loan after paying rates. Appointment of receiver: a receiver is treated as an agent of the mortgagor who becomes vicariously liable for his default. Consolidation: this is the equitable right of a mortgagee in whom several morgages are vested to insist that all the mortgages to redeemed at the same time. However. However certain conditions must be fulfilled. Any balance is payable to the mortgagor. It is therefore advisable for the mortagee to appoint a receiver than take possession himself. o • • • • QUESTION FIVE (a) • • • • Ambulatory: a will is said to be ambulatory in that it only speaks after death. Formalities: the validity of an oral or written will is dependent upon compliance with the formalities prescribed by law. taxes prior claims and his own commission. (b) Under section 8 of the act. Capacity: for a will to be legally valid the testator must have had the requisite capacity. Formalities of a written will STRATHMORE UNIVERSITY ● REVISION KIT . The validity of an oral will is dictated by two factors: • The declaration must be made before two or more competent witnesses. Thus. The right is generally exercisable if the mortgagor has executed a personal covenant to repay. As his name suggests. • The testators death must occur within three months of the declaration.Answers – Past Papers 115 There has been a breach of some other covenant in the mortgage. It distributes a persons property in death. not every person can make a will. Suit on Personal Covenant: this is the right of the mortgagee to sue the mortgagor for the amount due.

• To complete the administration of the estate other than in respect of continuing trusts within six months. tearing or otherwise destroying it with an intention to revoke it. the marriage of the testator revokes the will unless the will is made with contemplation of a marriage with a specific person. • To give a full and accurate inventory of the assets and liabilities of the deceased within 6 months of the grant • To distribute or retain in trust all assets remaining after payment of expenses and debts. if he has capacity to make it. • To produce to the court a full and accurate account of confirmation of the grant or such other time as the court may permit. Destruction: under sec 18 (1) of the Act a will is revocable by burning. typed or printed. A person can only revoke a will by destruction. Attestation: the will must be attested to by two or more competent witnesses. The law does not prescribe any form. The law does not prescribe the wording of a will. the will or codicil revoking the earlier will must declare intention to revoke it. The law does not insist on any form of attestation. • To pay out of the deceased estate all expenses of obtaining the grant or administration of the estate. Signature or mark: it must contain the signature or mark of the testor or some other person who signs in the presence of and in accordance with the directions of the testator. • To collect in all the free property of the deceased including debts owned or money payable. Such a marriage does not revoke the will. It may be handwritten. However. • To ascertain and pay all the debts of the deceased. Position of signature: the signature or mark must be placed as to show that it was intended to give effect to the writing as a will. (c) • • • Another will or codicil: under sec 18 (1) of the Law of Succession Act. Such destruction may be by the testor or some other person acting in accordance with the directions of the testor. (d) Duties of the personal representative • To pay out of the deceased estate reasonable funeral expenses. Marriage – Under section 19 of the Act. they need not be present at the same time. QUESTION SIX (a) Property may be acquired in various ways some of which include: LAW 1 .116 Questions and Answers Revision • • • • • Writing: there must be some writing. Presence of witnesses: all witnesses must sign the will in the presence of the tastator.

Answers – Past Papers 117 • • • • (b) Asserting ownership over things not previously owned by anyone else. Adverse possession i.e. asserting ownership on abandoned land. Purchase from a previous owner. Inheritance.

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Fixed period tenancy: this is a tenancy created for a fixed term. It has a specific commencement and termination date. It determines on expiration of the duration. Periodic tenancy: this is a tenancy which continues indefinitely from a periods of one year or less and may be express or implied. Tenancy at will: this is a tenancy whereby the tenant occupies the premises on terms that either party may determine the relationship at any time. Tenancy at sufferance: this is a tenancy which arises whenever a fixed period tenant holds over without the land lords consent or dissent.

(c) • This problem is based on the rights of the tenant in a tenancy. • In this case there is a tenancy agreement between Terry and Lucas. Both parties are subject to certain obligations for example the landlord must not derogate from the grant while the tenant must not commit waste. • It is apparent that Lucas is in breach of the tenancy agreement in various ways, namely failure to repair the window and making the premises unsuitable for Terry. Infact Lucas has already derogated from the grant and committed private nuisance, both actionable by Terry. • My advise to Terry is to: o Apply for an injunction to restrain Lucas from using the compound as storage. Lucas servants and agents should also be refrained from using Terry’s gate to access the construction site. o Terry is also entitled to repudiate the tenancy agreement. o Terry is entitled to repair the window in question and deduct the amount spent from the rent payable to Lucas. (d)

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A lease may be determined in various ways, namely: Notice: either party may notify the other its intention to terminate the lease. This is possible where the date of termination is not specified. Lapse of time: all fixed period tenancies determine on expiration of the stipulated time. Forfeiture: this is the right of the lessor, in the event of contain breaches, to re-enter the demised premises and thus prematurely terminate the lease. Surrender: this is the giving up by the tenant to the landlord of his interest in the premises. STRATHMORE UNIVERSITY ● REVISION KIT

118 Questions and Answers

Revision

• •

Merger: a lease determines if the interest of the lessor and the lessee in the property became vested in one person. Conversion:

QUESTION SEVEN (a) • Contract under seal: This is a contract drawn and sealed by a party and submitted to the other for signature. Such is a contract requires on consideration. Example include lease agreement, charge, mortgage. • Contract which must be in writing: This is a contract which must be embodied in a formal document. The law insists that it must be written. Examples include, hire purchase agreement, contract of marine insurance. • Contract which must be evidenced in writing This is a contract which must be evidenced by some note or memorandum. The law does not prescribe the form of note or memorandum. Examples include:  Contracts of insurance other than marine,  Contract of guarantee (b) The note or memorandum evidencing the contract must contain the following information: • Description of the parties sufficient to indentify them. • Description of the subject matter sufficient to identify it • Signatures of the parties. • Consideration QUESTION EIGHT (a) • Under the provisions of the Constitution of Kenya, a person is not regarded as having been deprived of his life, if he dies in the following circumstances: o For the defence of any person from violence o For the defence of property o In order to effect lawful arrest o To prevent the escape of a person lawfully detained. o For the purpose of suppressing a riot, insurrection or mutiny. o If he dies as a result of a lawful act of war.

(b) A person shall be lawfully deprived of personal liberty in certain circumstances: • In execution of the sentence or order of a court in respect of a criminal offence of which he has been convicted.

LAW 1

Answers – Past Papers 119 • • • • • • • In execution of a court order punishing him for contempt of court. For the purpose of bringing him before a court of law in execution of an order of the court. Upon reasonable suspicion of his having committed or being about to commit a criminal offence. For the purpose of the persons education or welfare if below 18 years. For the purpose of preventing the spread of an infectious or contagious disease. For the purpose of care, treatment or protection, if the person is or is reasonably suspected to be of unsound mind, addicted to drugs or is a vagrant. For the purpose of preventing the unlawful entry of the person into Kenya or for the purpose of effecting the expulsion, extradiction or other lawful removal of that person from Kenya or for the purpose of restricting the person while being conveyed through Kenya in the course of extradiction or removal as a convicted prisoner from one country to another. To such extent as may be necessary in the execution of a lawful order requiring the person to remain within a specified area within Kenya or prohibiting him from being within such an area.

STRATHMORE UNIVERSITY ● REVISION KIT

120 Questions and Answers MAY 2003 QUESTION ONE (a)

Revision

Equity means fairness or justice. It is a branch of the law of England which was developed by the various Lord Chancellors courts to supplement the common law. Equity developed to make the common law a complete system of rules. Its evolution is traceable to the early petitions to the King by persons dissatisfied with the common law system. Subsequently, the petitions were heard by the Lord Chancellor but it was not until the beginning of the 16th century that the Lord Chancellor’s started handing down decisions binding in law – “doctrines of equity.” • Equity was developed by the Lord Chancellors courts on the basis of the principle of fairness. Administration of justice was fast and the system was flexible. Equity developed after the common law and acts in personam. • By reason of inconsistent decisions but Lord Chancellors equity adopted the doctrine of stare decisis and developed the maxims of equity. • Equitys contribution to the Kenyan legal system is enormous: It is one of the principal sources of law of Kenya. • The maxims of equity developed by the Lord Chancellors courts guide Kenyan courts. • The additional remedies the courts evolved assist in the administration of justice. • The procedural mechanism of discovery of documents is applied in the administration of justice. • The trust relationship, recognized by equity has a fairly wide application in Kenya. • The principles of equity of redemption and equitable right to redeem have wide application in the law of mortgages and charges. (b) (i) • Supremacy of the constitution means that the constitution is the supreme law of the land. It means that it prevails over all other laws. • It means that all other laws derive their validity from the constitution. • The constitution embodies the basic rules and principles by which a society has resolved to regulate its affairs. (ii) • The concept of rule of law is a framework developed by Dicey on the basis of the English legal system. It is also described as the due process. • According to Dicey rule of law comprises three distinct conceptions namely. o Absolute supremacy or predominance of regular law means that all acts of the state are governed by law. It means

LAW 1

Answers – Past Papers 121 that a person can only be punished for disobedience to law and nothing else. o Equality before the law: means equal subjection of all persons before the law. It means that no person is exempted from obeying the law. All classes of persons are subjected to the same judicial process. o The law of the constitution is a consequence and not the source of rights: means that law is a manifestation of the will of the people. (b) • A judiciary without independence • Violence of whatever character for example riots, mutiny insurrection. • Selective prosecution of suspects • Corruption • Poverty • Overzealous president and ministers (disobeying court orders). QUESTION TWO (a) (i) The Land Tribunals • These are tribunals created by the Land Disputes Tribunals, Act, 1990, to entertain civil disputes relating to: o Division of land o Determination of boundaries to land including land held in common o Claim to occupy or work land o Trespass to land. • The jurisdiction of these tribunals is restricted to disputes relating to agricultural land. • Cannot entertain statute barred actions or disputes which have been heard and determined by any court. • There is a land disputes tribunal for every district (registration district)in Kenya. It consists of: o A chairman appointed by the District Commissioner from a panel of elders appointed by the minister for each district. o Either two or four elders selected by the district commissioner from a panel of elders appointed by the minister. o The tribunals applies African customary law. o Decisions are written, signed by all members and filed with the Resident or District Magistrates court. o Appeal lies to the Land Disputes Appeals Committee. (ii) Kadhi Court Establishment; • It is established by the Constitution and the Kadhis Court Act as a court subordinate to the High Court.

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divorce or personal status or succession in proceeding in which all parties profess Muslim faith. The court has jurisdiction to impose the following sentences: • Imprisonment • Fine • Dismissal from the armed forces • Reprimand • Reduction of rank. LAW 1 . The convict may be appealing against conviction or sentence or both. Composition • The court is presided over by an officer who sits with not less than 2 other persons or not less than four if an officer is being tried or where the maximum penalty for the offence is death. • A decision of the court may be appealed against in the High court. for example. • The evidence applicable is governed by Islamic law of evidence. All witnesses must be heard without discrimination. • A decision of the court may be appealed against in the High Court.122 Questions and Answers Revision Jurisdiction • The court is duly constituted when held by the chief Kadhi or Kadhi. (b) • To fix the amount of service charge if included in the rent payable. Jurisdiction: The court exercises original jurisdiction in criminal cases relating to offence committed by the members of the armed forces within the jurisdiction of the court. Under the constitution. The court is assisted by a judge/advocate who advice on questions of procedure. Resident Magistrates court and the District Magistrates court have jurisdiction to hear and determine such matters. disobeying lawful orders or desertion. It exercises original jurisdiction in civil cases only. its jurisdiction is limited to the determination of questions of Muslim law relating to marriage. mutiny. The Highcourt. (iii) The Courts Martial: Establishment • It is established by section 85(1) of the Armed Forces Act as a Subordinate court. the court has no exclusive jurisdiction hear such cases. • However. • Capital punishment.

For the doctrine of promissory estoppel to apply. • • • • It is an equitable intervention.Answers – Past Papers 123 • • • • • • • • • To determine whether or not any tenancy is controlled tenancy. The plaintiff sued for orders that the defendant pay: o The full rent o All the arrears The court held that whereas it was fair for the defendant to pay the full rent it was unfair for the plaintiff to insist on the arrears.500. o It would be unfair for the maker to act otherwise. after some discussion the plaintiff agreed in writing to accept half of the rent as long as the conditions of war persisted. the maker cannot be heard to say that their legal relations were different. QUESTION THREE The doctrine of equitable estoppel was developed to mitigate the harshness of the common law rule of consideration where a promisee had relied upon a promise and changed his legal position to his detriment. To determine or vary the rent payable in respect of any controlled tenancy. by the time the second world ward started most of the flats were unoccupied and the defendant could not make enough to pay the agreed rent. However. o A legal relationship between the parties o A representation by word or conduct intended to be relied upon. To vary or rescind its orders To enter and inspect premises comprised in a controlled tenancy To award compensation for any loss incurred by a tenant by termination of tenancy. once the other has relied upon it and changed his legal position.” where parties have a legal relationship and one of them by word of conduct makes a representation to the other intended to affect their legal position and to be acted upon by the other. all the flats were occupied but the defendant continued paying half the rent. The transaction took effect in 1937. To employ valuers and other persons to enable it discharge its mandate. o Reliance upon the representation o Change in legal position as a result of the reliance. However. the following conditions must exist. As they had STRATHMORE UNIVERSITY ● REVISION KIT . In Central London Property Trust Ltd V. Between 1940 and 1945 the defendant paid half the rent. High Trees House Ltd: the plaintiff leased a block of flats to the defendant for 99 yeas at a ground rent of f2. was explained by Lord Denning in Combe V. To facilitate the levy of distress for rent. By 1945. To a portion rent between tenant if a controlled tenancy is shared by tenants. To facilitate recovery of possession of premises. The doctrine often referred to as the rule in High trees case. Combe as follows.

However. (iii) LAW 1 . It enables a person who has not provided consideration to a promise to enforce it if he has relied upon it and changed his legal position to his detriment. • My advise to Njenga is to disregard the notice and wait for Muthoga to sue him. • Relying on this promise Njenga made extensive renovations of the premises only for Muthoga to give notice of termination. nuisance overlaps with the rule in Rylands V.124 Questions and Answers Revision • • • made a representation which the defendant relied upon. The criminal aspect is actionable by the Attorney General via prosecution. the defendant is not liable. • It is inequitable for Muthoga to terminate the lease as Njenga relied on his promise and has changed his legal position to his detriment. It entails an unreasonable behaviour which interferes with another persons use of his land. Hutchings Biemer Ltd whose facts were substantially similar. To some extent. if the plaintiff is over by the standards of reasonable man. and passage. This doctrine qualifies the common law rule of consideration. (b) • This problem is based on the equitable doctrine of promissory estoppel. • Muthoga and Njenga have a contractual relationship underwhich Muthoga is entitled to remain in occupation of the premises for five years. A similar holding was made in Century Automobiles Ltd V. Muthoga should be estopped from terminating the lease. It affects the individual in his capacity as such. • My advise is based on the decision in Century Automobiles V. He can then plead promissory estoppel on the basis of Muthogas promise. he cannot escape liability by pleading that the plaintiff came to the source of the nuisance. (ii) Public Nuisance: Public nuisance is an act which interferes with the enjoyment of a right which all members of the community are entitled to. They were estopped from insisting on the arrears. Fletcher. The doctrine of promissory estoppel is defensive not offensive. It can only be used as a shield not as a sword. Public nuisance is a crime as well as a tort. The plaintiff must prove an interference with his land or any right connected with it. Hutchings Biemer Ltd. QUESTION FOUR (a) (i) Private Nuisance: This is the unlawful interference of a person’s use of land or right over or in connection with his land. However. such as the right to fresh air.

Noise and vibration interfered with the plaintiff’s practice and he sued the defendant. it is the duty of the buyer to take delivery of the goods the subject matter of the contract failing which he is liable in damages for non acceptance. • Pay the price STRATHMORE UNIVERSITY ● REVISION KIT . A similar holding was made in Soltan V. The erection of the stand obstructed the views from the plaintiffs window.Answers – Past Papers 125 An individual may sustain civil proceedings for public nuisance by establishing that he has suffered particular loss than the community and is entitled to damages or other relief for example where a Local Authority closes a public motor way cutting of the flow of customers to the plaintiffs shop and there no alternative access Such a person must prove that the damage suffered by him is direct and substantial. It was held that the plaintiff has suffered some special loss land was entitled to recover damages. It was held that the defendant was liable. QUESTION FIVE (a) (i) • • • • Categories of unascertained goods. In the second case since Nabayi has suffered particular injury. Goods to be manufactured by the seller Crops to be grown by the seller Purely generic goods An unidentified portion of a special bulk or whole. (b) This problem is based on the tort of nuisance. Paddington Council (1911) the defendants erected a stand across a certain highway to enable the members of the council to view the funeral procession of King Edward VII. • Duties of the buyer towards the seller: • Take delivery Under section 28 of the Sale of Goods Act. as a result of the public nuisance. where he used a pestle and mortar for some 20 years. In Sturges V. It was no defence that the plaintiff himself came to the place of nuisance. De Held (1851). The vibrations occasioned by Namweya’s mill amount to public nuisance and the neighbours are supposed to instigate the arrest of Namweya for prosecution for public nuisance which is a crime. she has an action in damages against Namweya. In Campbess V. Bringman (1879) the plaintiff a doctor built a new consulting room next to defendant’s premises.

My advise to Thuku is that he is liable to Harry. Mwezi has no rights against the goods. (b) • This problem is based on the remedies of the unpaid seller. (ii) • The “agent” must have purpoted to act for a “principal” • The agent must have had a competent principal i.” The principals authority is backdated to the date of the transaction. failing which the seller may maintain an action against him for the price. (b) • This problem is based on agency by estoppel • In this case it is apparent Thuku represented Chuma as his agent and Harry subsequently dealt with Chuma as Thukus agent.e must not be illegal or void. • The transaction must be capable of ratification i.e. Thuku cannot be heard to say that Chuma was not his agent. it is the duty of the buyer to pay the price for the goods. He is estopped from so denying and is liable. He can only maintain an action against Mwisho for the price. Ratification creates agency after the “agent” has acted. • The “principal” must ratify the transaction within a reasonable time. • In this case Mwezi is an unpaid seller within the meaning of the provisions of the Sale of Goods Act • Since property in the goods has already passed to Mwisho. • However. LAW 1 . QUESTION SIX (a) (i) This is the adoption or affirmation by the “principal” of a contract previously entered into by another person purpoting to act on his behalf. the relationship between the principal and agent is created. if Mwezi has possession of the goods Mwezi may exercise alien on them and thereafter resell them if Mwisho does not pay or tender the price within a reasonable time. a natural or artificial person capable of being a principal. My advise is based on the decision in Freemans case. • The “principal” must have had capacity to enter into the transaction when the agent did so and when he ratifies. The relationship arises when the “principal” adopts or affirms the acts of the “agent. • The “principal” must have been aware of all the material facts relating to the transaction. By ratifying the transaction. • The “principal” must ratify the transaction in its entirety.126 Questions and Answers Revision Under section 28 of the Sale of Goods Act.

o Partial: this is an acceptance to pay part of the amount for which the bill is drawn. Registered corporation. held in trust for all members. their own. Such an acceptance may take the form of o Conditional: payment by the acceptor is dependent on the fulfillment of a condition. o Local: this is an acceptance to pay only at a particular specified place. corporations aggregate. chartered corporation. Members are liable for debts and statutory corporation. other obligations of the association. It has an independent legal personality with rights and subject They have no legal existence of to obligations. STRATHMORE UNIVERSITY ● REVISION KIT . constitution of the association. o Qualified as to time o Acceptance by one or more drawees but not by all. Such a corporation may be brought Property if any is jointly owned or into existence by registration. a specified person or his order. The sum is payable to the bearer. who come together to promote a common and lawful purpose. charter or by statute and Members rights are enshrined in the Examples include corporations sole. (b) QUESTION EIGHT (a) Incorporated Association Unincorporated Associations This is an association of persons These are associations of persons recognized as a legal entity.Answers – Past Papers 127 QUESTION SEVEN (a) A • • • • • • • • • • • (c) • A qualified acceptance of a bill of exchange varies or modifies the terms of a bill. bill of exchange may be discharged in the following ways: Payment in due course Acceptor the holder at maturity or merger Cancellation Material alteration Non-presentation for payment Renunciation or waiver It is an unconditional promise It must be written and signed by the maker It contains an engagement to pay a sum certain in money The sum is payable on demand or at a fixed or determinable future time.

of Revision incorporated The association can sue or be sued through its principal officers. All companies are legal entities or incorporated. Legal personality Limited liability Perpetual succession. property. Companies are subject to the doctrine of Ultra vires. In the event of dissolution members are entitled to share in whatever remains. Liability of members is generally unlimited Has capacity to sue or be sued. The firm name is registrable under LAW 1 . The law which regulates the association is the law which regulates the activities it engages in. Every partner is an agent of every other and the firm. Property is jointly owned by the partners. It is a contract of the utmost good Has capacity to contract and own faith. Limited Company This is a body corporate incorporated under the Companies Act and may be public or private. Owning property Sue or be sued Capacity to contract Examples include: Partnerships Trade unions Political parties Welfare associations Clubs Staff unions. It is an unincorporated association. A partnership is a profit motivated concern. It has perpetual succession. A private company consists of 2-50 excluding employees who are members. Consists of 2-20 members. A public must have a minimum of 7 members but has no maximum.128 Questions and Answers Characteristics associations. Liability of members is limited by shares or guarantee. Partnership A partnership is the relation which subsist between persons carrying on a business in common with a view of profit It may be general or limited.

a company had capacity to engage in transaction reasonably incidental to the attainment or pursuit of such objects. An Ultra Vires transaction remains Ultra vires and nothing can be done to render it Intra vires. An ultra vires transaction cannot be rendered intra vires by estoppel. It was so held in the Rolled steel case as well as in Brady V. The doctrine of ultra vires in company law has been weakened so much so that companies enjoy almost unrestricted capacity. A company must have directors. City wall properties Ltd. STRATHMORE UNIVERSITY ● REVISION KIT . However. Riche where the court was emphatic that the capacity of a registered company was restricted to transactions expressly stipulated in the objects clause. V. at least one for a private company and at least two for a public company. The doctrin of ultra vires was first incorporated into the Companies Act in 1844. lapse of time. Brady. This is a rule of capacity of registered companies contained in the provisions of the Companies Act. Ltd. (b) • • • • • • • • • Ultra Vires literally means beyond the powers. This decision expanded the contractual capacity of companies and weakened the doctrine of ultra vires.Answers – Past Papers 129 the provisions of the Registration of Business Names Act. for example “the company can engage in such other trade or business which can in the option of the board of directors be carried on advantageously for the company as was the case in Bell Houses Ltd V. Other transactions are beyond the powers and therefore unenforceable. in Attorney General V. One of the most common approaches to giving companies unrestricted capacity is the use of subjective clauses in the objects clause. This rule is to the effect that a registered company can only enter into transactions provided for by the objects clause and those that are reasonably incidental to the attainment of such objects. it was held that in addition to the express objects. All companies are incorporated by registration in accordance with the provisions of the companies act. Great Eastern Railway Co. Other transactions were Ultra vires. but it was not until 1875 that it was accorded a judicial interpretation in Ashbury Railway Carriage and Iron Co. delay acquiescence or ratification.

SUGGESTED SOLUTIONS QUESTION ONE (a) • Revision Literal rule This is the basic rule statutory interpretation. Cross to interprete the interpretation of Road Traffic Act. It is applied to avoid arriving at an absurd or repugnant interpretation under the literal rule. V. This rule was explained by Lord Coke in Heydons case (1584) and applied in Smith V. it was used in R. The rules was applied in the case of Evans V. Sentences should be given their ordinary aramatical meaning. It is only applicable where the particular words from a class or persons or things. Edmundson as follows. 1930. This rule is only applicable where words of general signification follow particular words in a statute. Under the rule. genus and species. phrase or sentence so as to get rid of the absurdity or repugnancy. the general words must be interpreted as being limited to the class or person or thing designated by the particular words. where general words follow particular words in a statute. they should be given their literal or plain or dictionary meaning. This rule was explained in R V. • • Mischief rule: (Rule in Heydons case) This is the oldest rule of statutory interpretation. The rule was explained in Becke V. Pearson. the court examines the statute to ascertain the mischief it was intended to remedy and then inteprete it in such a way as to advance the remedy and suppress any mischief. Hughes (1961) • Ejus dem generic This rule is applied to interprete things of the same kinds. Allen. • Noscitur a sociis This rule is of the effect that words of doubtful meaning derive the colour and precission from the words and phrases with which they are associated. It is to the effect that if the words of the statute are clear and exact.130 Questions and Answers NOVEMBER 2003 . Smith and in Grey V. independent Aistomatic sales and knows and foster. the court is free to vary or modify the literal meaning of the word. Under this rule. LAW 1 . Golden rule: This rule is to some extent an exception to literal rule.

assault. it must be accorded the same meaning through out the statute. dangerous driving. phrases and sentences must be given their due meaning unless they are meaningless conflicting clauses must be reconciled unless they are irreconcilable.Answers – Past Papers 131 • A statue must be interpreted as a whole. • If convicted they may be fined. specific performance tracing account. incest battery. Rendendo Singular Singulis This rule is to the effect that where a word. This is the wholistic rule of interpretation. Rank principle Statutes in parimateria • • • Criminal wrong Civil wrong • This is an act or omission • This is the violation of a persons committed or omitted in rights by another.e. (i) The plaintiff sues the defendant for the wrong and must prove his case. • Expressio unius est exclusion ulterius This rule means that the expression of one thing implies the exclusion of another. rape. violation of public law. The rule is to the effect that where a statute uses particular words which are not followed by general words then the statute only applies to the instances mentioned. false imprisonment. passing a false document. imprisoned. theft by servant uttering defamation. or subjected to capital or corporal punishment. i. • Examples include murder. assault. • Persons who commit criminal • wrongs are generally arrested by the state. injunction. Remedies for the plaintiff include damages. corporation or the state. negligence. conversion. human being. • It is a wrong against a person • It is a wrong against the state. winding up. off deceit. All words. incitement to • Examples include breach of violence causing death by contract. phrase or sentence variously used is the statute. drunken driving. • (c) o This is stare decisis STRATHMORE UNIVERSITY ● REVISION KIT . nuisance. They are then charged in a court of law and prosecuted by the state.

23 1864 by which time the defendant has given up. A similar holding was made in Virji Khimiji V. Death: the death of the offeror or offeree before acceptance terminates the offer. the defendant made an offer to buy 40 shares of the plaintiff company. It is the principle or proposition of law as formulated by the court. Failure of a condition subject to which the offer was made: a conditional offer lapses if the condition upon which it is based fails to materialize. if not accepted or revoked earlier. The defendant refused to take delivery and was sued. Reasonable time: if no duration is prescribed the offer lapses on expiration of reasonable time. For example. However. Stipulated time: where the offeror specifies the duration the offer is to remain open for acceptance. The plaintiff did not reply but delivered the timber 4½ months later. V. • • • • • In Ramsgate Victoria Hotel Ltd. Chutterbuck where the defendant offered to buy a quantity of timber from the plaintiff and required it urgently.132 Questions and Answers o o (ii) Revision It is a system of administration of justice whereby previous decisions are relied upon in subsequent similar cases. LAW 1 . Binding precedent – the earlier decision binds the court in which it is used. such offer lapses on the expiration of the duration. QUESTION TWO (a) Circumstances in which an offer may lapse. It was held that he was not bound to take up the shares as his offer has lapsed. It had not been accepted within a reasonable time. What is reasonable time is question of fact and varies from case to case. The offer lapses when death of the one is made known to the other. In June 1864. Montefiore. The offer lapses when the fact of insanity if communicated to the other party. He refused to take the shares and was sued. Insanity: the unsoundness of mind of the offeror or offeree terminates an offer. Manser). (Morgan V. the shares were not allotted to him until Nov. Declaration precedent: this is the application of an existing principle of law. The precedent or earlier decision becomes the source of law for subsequent cases. • • • • Original precendent: this is law making precedent. Persuasive precedent – the earlier decision is used to persuade the court to decide the case similary.

associations created by They owe their existence to an registration Act of Parliament. • Take over and continue any criminal proceeding instituted and undertaken by any other person or authority. • Institute and undertake criminal proceedings against any person before any court other than a court martial for any alleged offence. (b) RENT TRIBUNAL • Establishment: it is established by section 4 (1) of the Rent Restriction Act. • Promoters must comply with the • The Act provides them with a Provisions of the Companies Act. QUESTION THREE (a) (i) Statutory Corporations Limited companies • These are incorporated • These are incorporated associations created by statute. The rent tribunal has jurisdiction to: • Assess the standard rent of any premises on application or at its instance.Answers – Past Papers 133 It was held that he was not bound to take delivery as his offer had lapsed for non acceptance within a reasonable time. • Discontinue at any state before judgment is delivered any criminal proceedings instituted or undertaken by himself or any other person or body. • Order the commissioner of police to investigate any alleged or suspected criminal act. • Permit the levy of distress for rent. • Jurisdiction: It exercises original jurisdiction in civil cases between landlord and tenants of residential premises whose monthly rent does not exceed Ksh. • Composition: it consists of a chairman appointed by the minister. 2500. • Decisions of the tribunal may be appealed against in the High Court. name and prescribes its objects • On registration the association STRATHMORE UNIVERSITY ● REVISION KIT . • The Attorney General is the public prosecutor. one must be an advocate of not less than 5 years standing. Cap 296. • Determine the date from which such rent is payable • Apportion service charge between tenants if a tenancy is shared. To qualify for appointment as chairman. • He is the only amicus curie. (c) Under section 26(3) and 4 of the Constitution the Attorney General is empowered to. The commissioner must oblige and report to the Attorney General.

However. where as the membership of a public company is unlimited. • Interest may be transferred by the government. All state corporations belong to • the state hence have one member. a private company cannot have more than 50 members unless the excess members are or have been employees of the company.134 Questions and Answers • The corporation is a body corporated with perpetual succession limited liability capacity to contract sue or be sued and own property. Revision becomes a body corporate by the name contained in the memorandum of association. • Examples include Agricultural Finance Corporation. Companies directors. LAW 1 . Kenya Air Ports Authority Public universities. Kenya • Wildlife Services. Members interest in company is transferable. However registred are different in that companies • • • Membership is prescribed by law for example the minimum number of members is two for both public and private companies. Their features are generally similar to those of statutory corporations. are managed the by • • • There are two types of registered companies namely public and private. Their objects are prescribed by the memorandum of association.

liability association or declaration particulars of subscribers and the date. Laws of Kenya defines a prospectus as “any prospectus.Forfeiture of shares . .Transfer of shares .Lien on shares. .Dividend .Voting (b) Section 2(1) of the Companies Act. domicil objects.Answers – Past Papers 135 (ii) Memorandum of Association This is one of the so constitutive documents. the company and third parties. called Articles of Association It is a constitutive document It is the internal constitution of the It is the external constitution of the company. capital.” The contents of a prospectus include: • Directors interest in the promotion of the company. advertisement or other invitation offering to the public for subscription or purchase any shares or debentures of a company. It contains the rules of internal It regulates the relations between management. name of the company. QUESTION FOUR (a) Postal rules of acceptance STRATHMORE UNIVERSITY ● REVISION KIT . Contents include. Contents of Table A include: . company. It regulates the relations between It is the company’s charter.Powers of directors .Office of company secretary. Cap 486. the company and its members.Calls . Company may adopt Table A as its articles of association. • Particulars of directors and remuneration • Share qualification of directors • Voting and class rights • Minimum subscription • Promoters remuneration • Particulars of material contracts • Amount payable on application and allotment • Particulars of options on shares or debentures • Length of time the company has carried on business if less than 3 years. notice circular.Office of managing director .

Lindsell. the contract is concluded when the letter accepting the offer is posted even though it never reaches its destination. 5th. it was held that he was liable as a binding contract came into existence when the letter of allotment was posted to him. the scenario changes as three musicians would not appear for various reasons. Van Tienhoven. acceptance is deemed complete when a properly addressed and stamped letter is posted not withstanding any miscarriage in the course of postage. Question was whether there was a contract between the parties. The plaintiff accepted the posted letter on the same day. Lindsell the offeror expressly authorized the offeror to use the post. Grant posted a letter on Sept 30th 1874 offering to buy 100 shares in the plaintiff company. Grant refused to take up the shares and was sued by the company for the amount due on the shares. However. A similar holding was made in Henthorn V. V. 1817 the defendant made an offer the plaintiff to sell a quantify of wood and required an answer in the “course of the post. Yvonne for LAW 1 . Fraser. “it may be taken a settled that where an offer is made and accepted by letters sent through the post. (b) • • • This problem is based on remedies for breach of contract and termination of contracts. On Sept 2. Five days before the date of performance.136 Questions and Answers Revision Where the offeror expressly or by implication authorises the offeree to communicate his acceptance by post. The letter of acceptance was received by the defendant on Sept.” The defendant misdirected letter arrived on Sept. • Implied authorization In Household Fine insurance Co. It was held that there was a binding contract between the parties conducted on Sept 5th and the defendant was liable in damages for breach of contract. On sept 8th the defendant sold the wood to a third party. Grant. Grant argued that he was not a member since his offer had not been accepted. The letter was posted but never reached Grant. On Oct. In this case it is apparent that there is a contractual relationship between Saida and the musicians. It is so held in Byrne V. 20th 1874 the company secretary made out of a letter of allotment of 100 shares in favour of Grant and entered his name in the register of members. In the words of Lindley J in Adams V.” • Express authorization In Adam V. 9th. The respective parties were bound by their obligations.

My advice to Saida is to sue Yvonne and Omar and Mike for the return of the amount paid in advance. namely: • Unity of possession: all possess any part of the land • Unity of interest: all tenants have equal but undivided shares • Unity of time: the interest are acquired at the same time. QUESTION FIVE (a) Joint tenancy arises where two or more persons own something jointly. . . Omar by reason of war and Mike for inadequate remuneration: . (ii) • • This problem is based the rights of the lessee and duties of the lessor as well as the remedies available to either party for breach. • Example include: fee simple and absolute proprietorship. this amounts to incapacity as she cannot sing and the contract is frustrated as neither party is to blame. . It has the features of single proprietorship. jus accresscendi and the four unities. If confers the largest Quantum of rights and has no time limitation.To sue mike in damages of anticipatory breach of contract. • It confers the right to use and alienate. (b) (i) Freehold interest inland • This is the largest interest a person can have in land. • Unity of title: the tenants acquired title either by the same instrument or by operation of the same statute or through the same process of adverse possession. It is characterized by the right of survivorship i.e. It is evident that there is a tenancy agreement between Oliver and Stanley for 2 years which means that Oliver has exclusive STRATHMORE UNIVERSITY ● REVISION KIT .Mikes reason for non-appearance is not sustainable as it amounts to anticipatory breach of contract for which Saida has an action in damages.Answers – Past Papers 137 acute bronchitis. Knight. This is because under the provisions of the Law Reform (Frustrated Contracts) Act.As far as Yvonnes reason is concerned.With regard to Omar. As was the case in Frost V. when a contract is frustrated any money paid is recoverable. 1943. . the war in his country frustrates the contract as it was unforeseen. • Each tenant holds nothing by himself and at the same time holds the entire property collectively as co-owners.

• • Pecuniary legacy: Include an annuity in the general legacy. This is because under the provision of the Law of • (b) • • LAW 1 . It is clear that Paul made a written will bequeathing all his property to Nina and though he blames Nina for his illness he did not revoke the will. be met from the general estate. demonstrative legacy so far as it is not discharged out of the specified fund or property. It therefore follows that Nina is entitled to inherit all his property under the will. General legacy: This is a testamentary gift whether specific or general described in general terms to be provided out of the general estate of the testor whether or not also charged on any specific part of his estate.138 Questions and Answers Revision • • • possession of the house for the duration subject to the implied obligations of the lessee. My advise to Oliver is to sue Stanley’s wife for an injuction to restrain her from interfering with the quiet enjoyment of the house. This problem is based the validity of wills and their revocation. QUESTION SIX (a) • Demostrative legacy: This is a testamentary gift which is in its nature general but which manifests an intention that the gift shall be primarily satisfied out of a fund or a specified part of the property of the testor. Oliver has reason to feel aggrieved as his right to quiet possession of the house has been violated. Special legacy: This is a testamentary gift of a particular part of the property of the testator. but shall upon failure of that fund or property. and manifests an intention that that part shall be enjoyed or taken in the state and condition indicated by that description. It identifies that part by a sufficient description whether in specific or general terms. Since Stanley’s wife is not privy to the lease agreement she has over stepped her mandate by threatening to evict and storming the house. and any other general direction by the testator for the payment of money including all death duties free from which any gift made to take effect. The oral will purportedly made by Paul before Mark and Mathew has no effect as it purports to revoke the earlier will which was written.

if Tina was Paul’s dependant. However. Her resistance is of no consequence as she has no claim under the sons will. she can challenge the disposition of Paul’s property under the will in exercise of the right conferred by the provisions of the Law of Succession Act. Tina cannot therefore purport to inherit Paul’s property under the purported oral will. an oral will cannot revoke a written will. STRATHMORE UNIVERSITY ● REVISION KIT .Answers – Past Papers 139 Succession Act.

Under section 41 (1) of the Sale of Goods Act.taking possession of the goods. the seller Lien is exercisable in the following circumstances: • If the buyer becomes insolvent • if the goods have not been sold on credit • If the goods are sold on credit but the terms of credit has expired. the right of stoppage in transitu is only exercisable if the buyer becomes insolvent.giving notice of the sellers claim to the carrier or his principal. Whereas the right of lien is based on possession. . (b) Under section 5 (4) of the Hire Purchase Act. Under section 44 of the Sale of Goods Act. Revision Stoppage This is the right of unpaid seller who has already parted with possession of the goods to resume such possession as long as the goods are in the course of transit. This lien is possessory in character. • The owner cannot enforce any rights to recover the goods from the hirer. the carrier must deliver the goods in accordance with the sellers directions and at the expense of the seller by exercising the right of stoppage in transitu the seller has the opportunity to exercise alien over the goods. Under section 46 (1) of the Act the right of stoppage in transitu is exercisable either by: . Under section 45 of the Act goods are deemed to be in “course of transit” from the time they are delivered to a carrier for transmission to the buyer until the buyer or his agent obtain lawful possession. Once the notice is given. • Any contract of guarantee relating to the hire purchase agreement is also unenforceable LAW 1 . if a hire purchase agreement is not registered. • No person can enforce it against the hirer. It is exercisable even where the seller holds as the buyers agent. It is exercisable by the unpaid seller over any goods in his possession.140 Questions and Answers QUESTION SEVEN (a) Lien This is the right of unpaid seller in possession of the buyers goods to retain them as security for the price. the right of stoppage in transitu is not.

This problem is based on the principle of vicarious liability. time start running when he becomes of sound mind or dies whichever occurs first. Time start running from the date the cause of action arises. o If the prospective plaintiff is of unsound mind. But an undisclosed principal has no right that his is the principal himself. In this case there is a banker and customer relationship between the banker and Stephane. Any security given by the hirer or guarantor under their respective contracts is unenforceable. If a cause of action has arisen in favour of undisclosed principal he can enforce his rights under the contract against the third party. • • QUESTION EIGHT (a) • Rights of undisclosed principal If the third party elects to sue the principal and not the agent. Cap 22 failing which the action becomes statute barred. One of the principal duties of a banker to the customer is to honour all cheques drawn by the customer provided other conditions are fulfilled. the running of time may be postponed in certain circumstances. Causes of action in tort or on contract must be enforced within the duration prescribed by the Provisions of the Limitation of Actions Act. However. However. provided that agent had the authority to act on his behalf at the time the contract was made. Stephane has an action in damages against the banker for breach of duty. The banker is also bound to exercise care and skill in his dealings with the customer. an action based on defamation must be enforced within 1 years. o If the plaintiff is laboring under fraud or ignorance of material facts time start running when he ascertains the facts or when a reasonable person would have done so. All actions based on tort must be enforced within 3 years. time start running when it attains the age of majority or dies whichever comes first.Answers – Past Papers 141 • (c) • • • This problem is based on the duties or obligations of the banker to his customer. it is evident that the banker acted negligently and thus dishonoured the cheque. In this case. • (b) • • • (c) • STRATHMORE UNIVERSITY ● REVISION KIT . for example o If the prospective plaintiff is an infant. he must allow the principal the benefit of all the payments made by him to the agent on account of the contract before the agency was disclosed.

it is apparent that Mwanzia is Mutuku’s servant as a truckdriver. My advise to Mpole is to sue Mutuku for the loss of the petrol station. Although Mwanzia was negligent by litting the cigarette Mutuku is liable as the master.142 Questions and Answers • • Revision • • In this case. It therefore follows that Mutuku is vicariously liable for torts committed by Mwanzia in the course of his employment. As the servants conduct is irrelevant. This is because Mutuku is vicariously liable for torts committed by Mwanzia. It is apparent that Mutuku was at the material time acting in the course of his employment and Mutuku is liable for any tortuous acts committed by Mwanzia. LAW 1 .

It is concerned with the rights and duties of persons in ordinary transactions e. It is concerned with the constitution and functions of the various organs of government. Private law Consists of those fields of law in which the state has no direct interest as the state. law of marriage. their relations with each other and the citizenry. It is concerned with the rights and duties of persons and prescribed remedies e. succession. Administrative law and Criminal law.g. Examples include Constitutional law.Answers – Past Papers 143 MAY 2004 SUGGESTED SOLUTIONS QUESTION ONE (a) (i) Public and Private Law Public law: Comprises those branches or fields of law in which the state has a direct interest as the sovereign. The constitution of Kenya and the National Assembly Standing Orders prescribe the stages through which a Bill must pass to become an act of parliament.g law of torts. marriage. no debate takes place • Second reading – The Bill is read for the second time and it is debated on STRATHMORE UNIVERSITY ● REVISION KIT . etc. trust. as opposed to the procedure on how to apply them. Examples include Civil Procedure Act and the Criminal Procedure Code. Publication in the Kenya gazette Readings: • First reading – The Bill is read for the first time.g. law of contract. property etc. (ii) Procedural and substantive law Substantive law Consists of the laws themselves. It defines offences and prescribes punishment e. the penal code Cap 63 Law of Kenya. Procedural law Consists of the steps or the guiding principles or the rules of practice to be complied with in the application of substantive law or in the administration of justice. law of contract. including local authorities. It asserts state sovereignty. torts. It is statute in draft or law in its draft form. (b) A Bill may be defined as draft law or legislation.

A contract with Mr. QUESTION TWO (a) A contract is simple legal parlance is a legally binding agreement made between two or more parties. • Capacity – This is the ability to enter into a contract. For an agreement to be enforceable at law it must be characterized by certain elements. This contract is void and unenforceable by Rita or Bwisa as it is not recognized by the law of contract as binding. written evidence. A contract to purchase shares in Medium Moyenne Ltd. President’s assent – Section 46 (2) of the Constitution Publication in the Kenya gazette – Section 46 (6) of the constitution. • Consensus – Comprises offer and acceptance. (b) (ii) (iii) (iv) LAW 1 . A guarantee by Mrs. writing. Report stage – The chairman of the select committee reports to the National Assembly.144 Questions and Answers Revision • • • • • Committee stage – The Bill is referred to a select committee for a critical analysis. signature consent. • Legality – The contract must not be illegal or unlawful • Formalities if any – e. • Intention – The parties must have intended to bind themselves in law • Consideration – The act or promise offered by one party as the price for the other’s promise. Third reading – The Bill is read for the third time and if adopted it is voted on. Bwisa Nyutu. Kimani and Mrs. Tomno for an overdraft with a bank. This contract is voidable by Rita at any time during infancy or within a reasonable time after attaining the age of maturity. a taxi driver to drive her mother in hospital.g. During infancy. Both are obliged to honour their obligations failing which either party may sue and other in damages for breach thereof. Is the foundation of any contract. Rita is not liable on the contract and cannot be sued on it. (i) A contract of apprenticeship as a hairdresser with Esther This contract binds Rita and Esther.

Canali) QUESTION THREE (a) • • • • • Volenti non fit injuria: This is the defence of voluntary assumption of risk applicable in circumstances in which the plaintiff has consented to the act which causes the harm. My advice to Mrs. Waithaka hurled a stone at Mrs. Waithaka to be held liable. Karanja is based on the general law of torts. Secondly. Waithaka to Mrs. Since money borrowing by infants is void by virtue of the Infants Relief Act. In this case Mrs. Defence of the person: the defendant may rely on this defence if the committed the the trespass while defending his person from a threatened invasion. QUESTION FOUR (a) This question is based on the exceptions to the common law principle of nemo dat quod non habet i. Karanja can sue Mrs. Inevitable Accident: the defendant may rely on this defence if the trespass to the plaintiff was accidental and no reasonable step could have been taken to prevent the same. Karanja does not have to prove any loss for Mrs. It therefore follows that Mrs.e. Karanja with water making her clothes wet. Mistake: a defendant can rely on this defence if the trespass was committed to the wrong person and the defendant had reasonable ground to believe that the plaintiff was the party concerned. (Valentini V. Firstly the hurling of the stone by Mrs. Waithaka and has a number of causes of action for which she can seek judicial redress. Karanja with water amounted to battery as there was a physical contact with her person. (b) This problem is based on the law of torts. for example: • Estoppel Under section 23 (1) of the Sale of Goods Act the buyer gets a better title if the owner is by his conduct precluded from STRATHMORE UNIVERSITY ● REVISION KIT . Waithaka in damages for assault and battery. Mrs. one cannot give what he has not. Karanja amounts to assault as is created apprehension of some contact with her person. 1874. the splashing of Mrs. These torts are actionable per se and Mrs. However. any guarantee or security given is also void.Answers – Past Papers 145 This guarantee is void and unenforceable by or against Rita. there are many instances in law where a seller of goods can give the buyer a better title thereto than he himself has. Defence of property: this defence is available to a defendant who commits trespass while defending his property provided the force used is proportional to the threat. The defence is sustainable only if the force used is proportional to the threat. Karanja is aggrieved by the acts of Mrs. Karanja but missed but subsequently succeeded in splashing Mrs.

As a bailee Mary is bound to take reasonable care of the goods the subject matter of the bailment. It would appear to follow that Mary is liable in damages for breach of duty. Sale by mercantile agent or factor Under the provisions of the factors Act 1889. before the title is avoided. In Phillips V.The agent sells in the ordinary course of business as a mercantile agent . i. he pledged it to Brooks Ltd before his title was avoided and hence Brooks Ltd. if a seller who has already sold goods but retains their possession or documents of title disposes them off to a bona fide purchaser for value without notice of the previous sale. (b) This problem is based on the law relating to contracts of bailment.e. Mary the bailee had no other mandate other than repair and return the goods to Kate which is the essence of the bailment. he passes a good title. the owner has represented some other person as theowner. In this case Kate is the bailor as she delivered her clothes to Mary for repair only and paid for the same in advance.146 Questions and Answers Revision • • • denying the seller’s authority to sell. Laxmidar) a sale by factor passes a good title if: . Other exceptions include: • Sale by buyer in possession • Sale under statutory power • Sale by court order • Sale under common law power. QUESTION FIVE LAW 1 . he passes a good title. Brooks Ltd.The agent sells in his capacity as mercantile agent . which applies in Kenya as a statute of general application. though Mrs North’s title to the ring was avoidable for fraudulent misrepresentation. He can not deny the apparent ownership. and in Lewis V.The agent has possession with the principal’s consent . the requirements of estoppel must exist. Avery. However. Resale by seller in possession Under section 26 (1) of the Act. (Kapadia V. got good title. Brooks Ltd. In this case Mary did not return the goods to Kate as agreed and were then stolen. as was the case in Phillips V.The buyer takes in good faith and for value Sale under voidable title Under section 24 of the Act if the seller’s title is voidable but he sells the goods to a bona fide purchaser who takes without notice of the seller’s defective title. The loss of is traceable to Mary’s failure to return them to Kate after repair. As a bailee Mary is bound to take reasonable care of the goods the subject matter of the bailment.

under the provisions of the Act. Cap 37 Laws of Kenya.Answers – Past Papers 147 (a) Real property: This generally refers to immovable property or realty e. However. land which includes buildings and trees on it. an occupier owes all his visitors and invitees a common duty of care i. STRATHMORE UNIVERSITY ● REVISION KIT . • Not to commit waste. In this case Abdallah had placed a warning sign outside the entrance of the building. On the other hand Makanyanga was in hurry to attend class and did not see the notice.g Chattels. In our view Abdallah cannot escape blame. • To make material disclosures. The fact that he was rushing is therefore of no consequence and Abdallah is liable for the loss arising. • To make reparation for any breach. • not to erect fixtures • Permit the lessor to view the premises.g. It is our submission that displaying a sign that the floors are slippery without anything more is an inadequate warming. charge or sublet. an occupier escapes liability by showing that he had given sufficient or adequate warning of the danger. The facts do not tell us whether the sign was conspicuously displayed and was thus sufficient. (c) This problem is based on the provisions of Occupier’s Liability Act. Perhaps this is an indication that it was not conspicuously displayed.e the duty to take such care as in all the circumatances of the case is reasonable to see the visitor is reasonably safe in using the premises for the purpose for which he is invited or permitted to be there. Under the provisions of this Act. Terms implied on the part on the lessee include: • To pay the rent reserved • To pay rates and other taxes • To put the landlord in possession on termination • Not to transfer. An easement is characterized as a right in alieno solo. QUESTION SIX (a) (i) An easement has been defined as a right attached to a parcel of land which allows the proprietor of the land to use the land of another in a particular manner or to restrict its use in particular extent. Personal property: Generally refers to the movables e. (ii) (b) • Characteristics of easements Dominant and servient tenement: for an easement to subsist there must be adjacent parcels of land where one serves the other. In this case Abdallah is the occupier and owes all his visitors a common duty of care. The essence of an easement is that it may be positive or negative.

enable the tenement enjoy the right or rights in question. Codicil: This is a testamentary instrument made in relation to a will explaining. A will may be oral or written. Subject matter of grant: the circumstances must be such that the easement is capable of forming the subject matter of the grant.148 Questions and Answers Revision • • • Owned or occupied by different persons: the dominant and servient tenements must be owned and occupied by different persons.e. Surrender – Tenant gives up the premises to the landlord. (b) • • • • • • • • • • • • • (c) QUESTION SEVEN (a) Will: This is the legal declaration by a person of his wishes or intentions regarding the disposition of his property after death duly made and executed in accordance with the provisions of the Law of Succession Act. Enlargement To put the tenant in possession Not to derogate form grant Ensure that the premises are fit for the purposes for which it is let. i. (b) (c) LAW 1 . The rights must be specific and must belong to a class capable of being granted. Effluxion or lapse of time – duration lapses Merger – interest of both parties vest in one person. A will includes a codicil. Forteiture – Landlord re-enters the premises Notice – if date of termination is not prescribed either party may notify the other its intention to terminate the tenancy. Conversion – Lesee converts the leases to another interest. altering or adding to its dispositions or appointments duly made and executed as required by the provisons for the making and execution of a will. there must be a capable grantor and grantee. passages. Accommodate the dominant tenement: the easement must accommodate the dominant tenement i.e. roof etc (duty of repair) To suspend or adjust rent if the premises or part thereof is rendered unusable otherwise by reason of the tenant’s negligence. Ensure quiet possession by the client Maintain the main walls. Probate: This is a certificate of a court of competent jurisdiction that the will of which a certified copy is attached in the case of a written will has been proved a valid will. with a grant of representation to the executor in respect of the estate.

be met from the general estate. but shall upon failure of that fund or property. General legacy: This is a testamentary gift whether specific or general described in general terms to be provided out of the general estate of the testator whether or not also charged on any specific part of his estate. It identifies that part by a sufficient description whether in specific or general terms. demonstrative legacy so far as it is not discharged out of the specified fund or property. Special legacy: This is a testamentary gift of a particular part of the property of the testator. and manifests an intention that that part shall be enjoyed or taken in the state and condition indicated by the description. insurrection or mutiny (b) STRATHMORE UNIVERSITY ● REVISION KIT . • • • • • For the defence of property For the defence of any person from violence In order to effect a lawful arrest To prevent the escape of a person lawfully detained For the purpose of suppressing a riot. • Remit the whole or part of a punishment imposed on a person for an offence or of a penalty or forfeiture.Answers – Past Papers 149 (d) Demonstrative legacy: This is a testamentary gift which is in its nature general but which manifests an intention that the gift shall be primarily satisfied out of a fund or a specified part of the property of the testator. • Remove in whole or in part the non-qualification or the disqualification of a person arising out of or in consequence of the report of an election court. Pecuniary legacy: Includes an annuity in the general legacy. • Grant to a person a respite either indefinite or for a specified period of the execution of a punishment imposed on that person. (e) (f) (e) QUESTION EIGHT (a) The president may: • Grant pardon either free or subject to lawful conditions a person convicted of an offence. • Substitute a less severe term of punishment for a punishment imposed on a person for an offence. and any other general direction by the testator for the payment of money including all death duties free from which any gift made to take effect.

For the purpose of preventing the unlawful entry of that person into Kenya. For the purpose of bringing him before a court in execution of an order of a court Upon reasonable suspicion of his having committed of being about to commit a criminal offence under the law of Kenya. For the purpose of preventing the spread of an infectious or contagious disease In the case of a person who is or is reasonably suspected to be of unsound mind. or for the purpose of effecting the expulsion. or to such extent as may be reasonably justifiable for restraining that person during a visit that he has made to a part of Kenya in which he.150 Questions and Answers • (c) • • • • • • • • • • • Revision In order to prevent the commission by that person of a criminal offence If a person dies as the result of a lawful act of war. LAW 1 . addicted to drugs or alcohol. extradiction or other lawful removal of that person from Kenya. in a consequence of the order. In the execution of an order of a court established in Kenya or elsewhere In execution of an order of the High Court or Court of Appeal punishing him for contempt of court In the execution of an order of a court made to secure the fulfillment of an obligation imposed on him by law. his presence would otherwise be unlawful. in the case of a person who is below the age of 18. for the purpose of his care or treatment or the protection of the community. For the purpose of his education or welfare. To such an extent as may be necessary in the execution of a lawful order requiring that person to remain within a specified area within Kenya or prohibiting him from being within such an area. or to such extent as may be reasonably justifiable for the taking of proceedings against that person relating to the making of any such order.

The ratio decidendi of an earlier decision is relied upon in a subsequent similar case. • • STRATHMORE UNIVERSITY ● REVISION KIT . Burden of proof in civil cases is borne by the plaintiff i. Judicial precedent or stare decisis or caselaw is a system of administration of justice whereby previous decisions are relied upon in subsequent similar cases. (b) Codification: • This is the process of bringing together all the unwritten law in a specific area to constitute a comprehensive code. It is formal and supreme over unwritten law. It creates new law where none existed or amends existing law.Answers – Past Papers 151 NOVEMBER 2004 – SUGGESTED SOLUTIONS QUESTION ONE (a) Constitutional law: • This is a branch of law which creates the principal organs of government. • It relates to unwritten law e.e. Consolidation • This is the process of bringing together into one statute the provisions of other statutes. The standard of proof is on a balance or preponderance of probabilities. • It relates to written law e. Companies Act.g. • It is concerned with the exercise of power by state bodies and officers. • It generally lays down the fundamental principles of a limited government. it is the onus of the plaintiff to prove his allegations. The burden of proof in criminal cases is borne by the prosecution. The standard of proof is beyond any reasonable doubt or shadow of doubt or shadow of doubt. (c) • • • • • (d) • • • • Statute law is law made by parliament directly. It creates rules to regulate future conduct.g. Sale of Goods Act. Administrative law: • This is a branch of law which is concerned with the relations between various state bodies and officers. It is the duty of the prosecution to prove the accused guilty. • It sets out the powers and functions of these organs.

It deals with the rights and duties of trustees and beneficiaries. • Legal assignment: if a creditor assigns his debt to a third party e. Only a person who has provided consideration is privy to a contract. It is subordinate to statute law. the agent represents the principal who is therefore party to the contract. It is concerned with ascertaining and giving effect to the wishes of the deceased and providing for dependants. 1882.g.152 Questions and Answers • • • (e) • • • • • • • It does not always create new law. The bulk of the law of succession in Kenya is contained in the Law of Succession Act Cap 160. • Negotiable Instruments: a holder of a negotiable instrument can sue on it in his own name even though he has not provided consideration. impliedly or constructively hold property on behalf of others. This exception is more apparent than real in that in law. the assignee is entitled to sue the debtor as if he were the original creditor. pursuant to the provisions of the Indian Transfer of Property Act. Revision The law of succession is concerned with the disposition of property after death. It deals with the devolution of a deceaseds estate. The common law doctrine of privity of contract has several exceptions for example: • Agency: A principal may sue or be sued on a contract entered into by the agent. The insurer is liable as long as the motor vehicle was in the hands of the insured or an authorized driver. A stranger to consideration cannot sue or be sued on the contract even if it was intended to benefit him. The law of trust is concerned with circumstances in which persons expressly. LAW 1 . QUESTION TWO (a) • • • The principle enunciated or applied in this case is the fundamental rule of privity of contract which is to the effect that Only a person who is party to a contract can sue or be sued on it. It also prescribes remedies for breach of trust. a victim of a motor accident is entitled to compensation by the insurer for any injuries sustained. This exception is contained in section 27 (1) of the Bills of Exchange Act. It is based on reasoning and is unwritten. • Third Party Insurance: under the provisions of the Insurance (Motor vehicles Third Party Risks) Act Cap 45.

e.Answers – Past Papers 153 • • Trust:: the beneficiary is in certain circumstances permitted to sue the trustee notwithstanding the absence of privity between the two.g. transfer • Retransfer • Operation of law. e. by court order • Inheritance • Intestacy. • It is a question of fact. Jumbe is therefore entitled to the Kshs. possession. (c) Loss of ownership • By a voluntary act e.g. Possession: • This is the mere fact of holding or control of the property. death or bankruptcy STRATHMORE UNIVERSITY ● REVISION KIT . (ii) In this case Musika is in breach of contract by reason of self-disablement and Jumbe has an action against him in damages for the breach. Contracts or Covenants running with land: certain benefits and liabilities attached to or imposed on land are in certain circumstances enjoyed by subsequent holders of the land upon whom liability may also attach. misuse and disposition. • Adverse possession • Purchase from a previous owner • Without the owners consent. • It does not generally confer proprietary rights. • He is not bound to pay the balance. A down payment had even been made. • It is a question of law. (b) (i) • This problem is based on a contract subsisting between the parties.g. • The proprietor may part with possession by choice. (b) Acquisition of ownership • Asserting ownership over things not previously owned by any other person.000 paid to Musika as none of the parties is to blame. QUESTION THREE (a) Ownership: • Confers certain basic rights over the property for example rights to exclusive use. • The cancellation of the rallies frustrated the contract and discharged both parties from their obligations. 50. Musika had agreed to perform and Jumbe to pay.

Has adequate knowledge of the Kiswahili language. • Kenyan law on domicil is contained in the Law of Domicil Act. a legitimate infant acquires the fathers domicil while an illegitimate infant acquires the mothers domicil.g. capable of physical possession e. who is not a minor has capacity to acquire a domicil of choice by:  Taking up residence in the country of choice. any foreigner desirous of becoming a citizen of Kenya may apply to the minister for naturalization. Chose in possession • These are tangible things or subject matter.g. The domicil of the dependant changes with that of the other person e. Extinction or forfeiture Revision Chose in action • These are intangible rights which can only be enforced by court action. (b) Under section 93 (1) of the Constitution.g. • They are not capable of physical possession e. Is of good character. Destruction of tangible assets. o Domicil of dependence: this is the domicil of dependants. land. o Domicil of choice: this is the domicil a person acquires by choice. Cap 37. QUESTION FOUR (a) Domicil: • This is the country of permanent residence. Abandonment. o Domicil of origin: this is the domicil a person acquires at birth e. LAW 1 . motor vehicles etc. • Under the provisions of this Act there are three types of domicil namely.154 Questions and Answers • • • • • Displacement by new owner (adverse possession). patents etc.g. • It is the country in which a person has or is deemed by law to have a permanent home. debts. the domicil of an adopter infant depends of that of the adopter while that of an illegitimate infant depends on that of the mother.  Having an intention to make the country his permanent home. The minister must be satisfied that the applicant: • • • Has attained the age of 21. Every person of sound mind. Lapse of time or discharge for tangible assets. The constitution prescribes the minimum conditions an applicant must fulfill.

The minister may thereupon grant the applicant a certificate of naturalization. false representation or concealment of material facts. • Has during a war in which Kenya was involved unlawfully traded. (ii) Administrator cum testamento annexo: • This is a person appointed by the court to administer a deceased’s estate in accordance with the will as though he were an executor. (c) Section 94 (1) of the Constitution sets out the grounds upon which the minister may revoke the citizenship status of a registered or naturalized citizen. • Has within 5 years of registration or naturalization been convicted for a criminal offence and sentenced to imprisonment for 12 months or more. communicated or engaged with enemies while aware that such trade assisted the enemy in the war. The minister must be satisfied that the citizen: • Has by act or speech shown himself to be disloyal and disaffected towards Kenya.Answers – Past Papers 155 • • • • Intends to continue residing in Kenya if naturalized. or if the appointment fails to take effect. • Has continuously resided outside Kenya for 7 years while not in the service of Kenya or other international body of which Kenya is a member etc. • The appointment is made on application if the testators will does not appoint an executor. the younger survives the elder. QUESTION FIVE (a) (i) • This doctrine is to the effect that where two or more persons die in circumstances rendering it uncertain as to which of them survived the other (s) the death is presumed to have occurred in the order of seniority and accordingly. STRATHMORE UNIVERSITY ● REVISION KIT . Has been ordinarily and lawfully resident in Kenya for a period of 4 years or for periods amounting in the aggregate to not less than 4 years during the 7 years immediately preceding the 12 months. • In the case of spouses they are presumed to have died at the same time. Has been ordinarily and lawfully resident in Kenya for 12 months immediately preceding the application. • The person appointed administers the estate as per the will. • Obtained the registration or naturalization by means of fraud. (iii) Administrator Pendente Lite • This is an administrator appointed by the court to safeguard the testators estate while legal proceedings concerning the validity of the will are pending in court.

There must be an agreement to the effect that the survivor cannot revoke the arrangement. o Whether the visitor has willingly accepted the risk. QUESTION SIX (a) (i) An occupier is any person who has overall control of any premises whether he is physically available at such premises or not. o Whether the visitor or invitee is an infant • (b) LAW 1 . • There is delivery of possession or documents of title to the intended beneficiary. Laws of Kenya. • The donor does not survive the illness or danger. On the death of either party leaving his or her will unrevoked the arrangement becomes binding. regard is had to: o Whether the occupier had adequately warned the visitors of the danger. It is an equitable doctrine developed to prevent an unconscionable revocation of a will. o Whether the visitor was discharging his calling. a gift in contemplation of death is valid only if: • The donor is at the time contemplating death by reason of a present illness or present and imminent danger. In determining whether an occupier has discharged the common duty of care. • The beneficiary survives the donor • The gift is made in circumstances which show that the donor intended it to revert to him should he survive the illness or danger. An occupier owes all his visitors a common duty of care concerning dangers arising from the state of the premises. thing done or omitted to be done.156 Questions and Answers Revision (b) Under section 31 of the Law of Succession Act. The occupier is bound to take such care as in all the circumstances of the case is reasonable to see that the visitor is reasonably safe in the use of the premises for the purpose for which he is invited or is permitted to be there. Cap 160. (c) • • • • A mutual will is an arrangement between two people usually a husband and wife to execute mutual wills making provision for each other with the remainder to a third party usually a child. • The gift involves movable property disposable by will. (ii) • • • A visitor is a person who has express or implied permission to enter upon and/or remain within certain premises.

o Liability was excluded by the contract between the parties. This question appear to be founded on the assumption that a trespasser has the same remedies as a visitor. The occupier in this case is not liable for the injuries sustained by the window cleaner. A trespasser injured in a persons premises has no actionable claim against the occupier. (volenti non fit injuria).e.Answers – Past Papers 157 • • • • (c) • • • An occupier owes a trespasser no common duty of care. This problem is not based on occupiers liability as such. o The occupier had given adequate warning of the danger. • The principal must have been aware of the material facts affecting the contract. The occupiers liability is based on the common law. It is based on the liability of an employer for injuries sustained by an employee in the course of his employment. o The injury is a consequence of the faulty execution of a task by a competent independent contract and the occupier has satisfied himself that the contractor had discharged the same reasonably. profession or occupation as an agent. Special agent: • This is an agent whose authority is limited to doing some act or representing the principal in a transaction not in the ordinary course of his business trade profession or occupation as an agent. The occupier may rely on the following defences: o Consented to the risk i. not illegal or void. • The scope of his authority depends on the contract. • His authority is based on the contract. STRATHMORE UNIVERSITY ● REVISION KIT . • The principal must have had capacity to enter into the transaction not only when the agent did so but when he ratifies the same as well. (b) Requirements or conditions for ratification • The agent must have purported to act for a principal.e. • The transaction entered into by the agent must be capable of ratification i. The employer is liable for not providing protective clothing to the employee. QUESTION SEVEN (a) General agent: • This is an agent who has authority to do a particular act or engage in a transaction in the ordinary course of his business trade. • The agent must have had a competent principal.

• Indemnity: the principal is bound to compensate the agent for any loss or liability arising in the course of discharging his obligations. the principal is only liable to indemnify the agent for liability arising while the agent was acting within the scope of his authority. • Consistency and uniformity: case law facilitates consistency and uniformity in the administration of justice as similar cases are decided in alike. Obligations of the Principal to the agent include: • Remuneration: the principal is obliged to remunerate the agent for services rendered. LAW 1 . However. • The materials from which rules of law developed. The agent must earn his remuneration by rendering services but it is immaterial that the principal has not benefited from the agents performance. However. • The source of force or validity of the rules or principles applicable as law in a country. National and Grindlays Bank the Court of Appeal was emphatic that “a system of law requires a considerable degree of certainty. the phrase has been used to describe: • The origins of the rules and principles which constitute the law applicable in a country at a given time. QUESTION EIGHT (a) The phrase “Sources of Law” literally means where rules of law are found.158 Questions and Answers • • (c) Revision The principal must ratify the contract in its entirety. However.” Case law makes a legal system certain and predictable. The main sources of law of Kenya are: • The constitution • Legislation or statute law • Delegated legislation • Statutes of general application • Common law • Equity • Case law (b) Advantages: • Certainty and Predictability: In Dodhia V. the principal is not bound to remunerate the agent if he has acted negligently or has made a secret profit without disclosing. • The factors which influenced the development of the rules of law. The principle must ratify the transaction within a reasonable time. This obligations may be express or implied.

Immemorial antiquity: the custom must have been observed since time immemorial i.e. Flexibility: it is contended that case law is flexible in that judges in subsequent cases attempt and sometimes succeed in distinguishing earlier decisions so as to justify departing from them. • Piece-meal: principles or propositions of law are enunciated by courts in bits and pieces i.Answers – Past Papers 159 • • • Rich in detail: many decisions which constitute precedents have been made. This is because parliament is the supreme law making body and has power to render a particular custom inoperable. for a long time. Conformity with statute law: The custom must be consistent with written law. This arguably makes caselaw artificial and may lead to uncertainty.e. Observance as of right: the custom must have been observed openly and as of right. nec precario. This could perpetuate incorrect decisions. Closely allied to this problem is the challenge of extracting the ratio decidendi. Disadvantages: • Rigidity: strict application of judicial precedent makes a legal system inflexible and unresponsive to changes. nec vi. (c) • • • • Reasonableness: a good local custom must be reasonable to the persons affected by it. Practicality: judicial precedent is practical in that principles or propositions of law are formulated on the basis of practical circumstances that demand legal solutions.e. they develop technical distinctions or distinctions without differences. This is because law is founded on the principle of justice. • Bulky and complex: caselaw is by its nature bulky as many decisions have been made and there is no index as to which of them are precedents in what cases. • Over-subtely: when judges in subsequent cases attempt to distinguish indistinguishable cases so as to depart from them. there is no deliberate attempt to make law in a comprehensive matter. STRATHMORE UNIVERSITY ● REVISION KIT . nec clam. It must be recognized as binding by those affected by it. Time immemorial means no living person can adduce evidence as to when the custom did not exist. i.

• Inadequate publicity: the rules are not widely published. Less acrimonious: it tunes or tones down acrimony. • Speed: it is a faster method of law making. government ministers etc in exercise of delegated legislative authority or power conferred upon them through an enabling or Parent Act. professional bodies. • Difficult to control: neither parliament nor courts of law can control it effectively. Convenience: parties are free to chose the timing. free from public scrutiny. regulations statutes or proclamations made by subordinate competent bodies for example local authorities.160 Questions and Answers MAY 2005 QUESTION ONE Revision (a) • This is indirect. • These are by-laws. rules. It is therefore responsive to urgent needs. • Flexibility: the law making process is not tied to rigid provisions of the constitution. statutory boards. Cheap: there is a saving on cost. Disadvantages: • Less democratic: it is not as democratic as statute made law. language and venue of the proceedings. LAW 1 . Expert knowledge and specialization: parties are free to appoint the most experienced arbitrator to hear their case. Privacy: proceedings are conducted in confidence. Speed: it is a faster method of dispute resolution. orders. • Technicality of subject matter: technical subject matter is dealt with by experts in the field. • Detail and technical: some of the rules are too detailed or technical to be understand. Relieves overburdened courts: entertains disputes which otherwise would have gone to court. subordinate or subsidiary legislation. • Sub-delegation and abuse of power: complicates the problem of control. Advantages: • Compensation of parliamentary lost time: law making time not made use of by parliament is made use of by the delegates. (b) • • • • • • • • Informality: free from technicalities which characterize ordinary courts of law. • It is law made by parliament indirectly.

the Judicial Service Commission consists of: • Chief Justice. • Registrar of High Court acts as secretary. Kenya Wildlife Services. gives it a name and prescribes its objects. occupation. Association or declaration clause: states the desire of the subscribers to be formed to a company. Kenya Revenue Authority.. members determine who may join. Registered office clause: states that the registered office of the company will be situate in Kenya. as chairman. Capital clause: specifies the capital with which the company proposes to be registered and the divisions thereof. QUESTION TWO (a) • • • By registration: these are companies incorporated pursuant to the provisions of the Companies Act. Catholic University for Eastern Africa.Answers – Past Papers 161 (c) Under the provisions of the Constitution. • Transfer of shares is restricted. STRATHMORE UNIVERSITY ● REVISION KIT . The company may be public or private. By charter: these are private universities that have been given a charter in accordance with the Universities Act. Particulars of subscribes: name of the subscribers postal addresses. (b) • • • • • • • • Name clause: describes the name of the company with “Limited” or “Ltd” as the last word thereof for companies Limited by shares or guarantee. Objects clause: sets out the purposes for which the company is incorporated. Date: a memorandum must be dated. Public Service Commission. By statute: these are corporations created by Acts of parliament. • Attorney General • Two persons who are for the time being judges of the High Court and Court of Appeal appointed by the president. It delimits the companies contractual capacity. • Chairman. • It is the best vehicle for family business.g.g. Liability clause: states whether members liability is limited or unlimited and whether limited by shares or guarantee. (c) • Subscribers are in a position to control membership. number of shares taken. E. The Act establishes the body. Their creation is evidenced by a certificate of incorporation. e. It describes the contractual capacity of the company.

(d) • A partner has become a lunatic or is permanently of unsound mind. • A partner is continuously guilty of willful breach of the partnership agreement. Entitled to commence business on the date of incorporation. need not publish annual accounts or hold the statutory meeting. • Circumstances are such that it is just and equitable that the partnership be dissolved. • The partnership business can only be carried on at a loss.g. • A partner is permanently incapable of discharging his obligations as a partner. • A partner has behaved in a manner unfairly prejudicial to the firm and his continued association is likely to bring the firms name into disrepute.162 Questions and Answers • • Revision Subject to less statutory formalities e. LAW 1 .

• If the seller delivers more goods the buyer may reject all of them or accept only those included in the contract or accept all and pay and pay at the contract rate. • Unless otherwise agreed.Answers – Past Papers 163 QUESTION THREE (a) • Parties are invariably the buyer and the seller. • If the seller is bound to transmit the goods to the buyer he must do so within a reasonable time. • Unless otherwise agreed. Damages for breach of warranty: this remedy may be availed if the buyer has agreed or is compelled to treat breaches of conditions by the seller or breaches of warranties and the seller is in breach thereof. • If the goods are in the hands of a third party. • Transfer or passing of property from the seller to the buyer. • If specific goods are in some other place known to the parties that other place is the place of delivery. written or implied from conduct of the parties. The seller sells or agrees to sell while the buyer buys or agrees to buy goods. failing which his residence. Property in goods must pass from the seller to the buyer. • It always involves goods e. • Unless otherwise agreed. • The contract may be oral. the place of delivery is the sellers place of business if any. the buyer is not bound to accept delivery by instalments. Specific Performance: this remedy may be applied for if the seller wrongfully neglects to deliver specific goods. This is the consideration provided by the buyer to support the contract. the buyer is entitled to reject the goods or accept them and pay at the contract rate. delivery is deemed complete when the third party intimates to the buyer that he holds the goods on his behalf. • It is characterized by price.g. emblements industrial growing crops etc. STRATHMORE UNIVERSITY ● REVISION KIT . • Delivery by common carrier is prima facie complete when the goods are handed over to the carrier. personal chattels. It must be monetary in character. (c) • • • Damages for non delivery: this remedy is available to the buyer if the seller wrongfully neglects or refuses to deliver the goods as agreed. • Both parties must have the requisite capacity. the cost of and incidental to putting the goods into a deliverable state is borne by the seller. (b) • Whether it is for the buyer to take delivery or the seller to transmit them to the buyer depends on the terms of the contract. • If the seller delivers less goods.

LAW 1 . the buyer is entitled to reject them.164 Questions and Answers Revision • • Recovery of price: this remedy is available where consideration for the payment has totally failed. or the goods delivered are mixed with those of a different description. Rejection of goods: if more or less goods are delivered.

As is therefore bound to honour its was the case in Poussard V. part. contract. stipulation.Answers – Past Papers 165 QUESTION FOUR (a) Condition Warranty • This is a major term of a • Is a minor term of a contract or a contract or a term of major term of minor stipulation. appearance from the beginning of the season amounted to a breach of a condition and the organizers were entitled to treat the contract as repudiated. • If breached. This proposition is generally true as it encapsulates STRATHMORE UNIVERSITY ● REVISION KIT . The party in damages for the breach. Tweddle V. However there are several exceptions to this rule where persons who have not provided consideration or are not privy to a contract can sue or be sued on it. Midland Sillicones Ltd. Gye it was Spiers and Pond where it was held that the term broken was a held that the singers non warranty. It means that by providing consideration a person becomes party to a contract. • Agency relationship • Legal assignment • Trust relationship • Covenants running with land • Third Party motor insurance. Atkinson. It means that a stranger to a contract cannot sue or be sued on it even if it was entered into for his benefit Scruttons Ltd V. (b) • • • This phrase means that only a person who is party to contract can sue or be sued on it. • It does not ran to the root of the • It is part of the central theme of contract. (c) Discharge of contract by performance means that the performance must be precise and exact. Dunlop V. the contract. • Negotiable instruments. it entitles the • If breached it entitles the innocent party to an action in innocent party to treat the damages but the contract contract as repudiated and sue remains enforceable. Selfridge. In Bettini V. • It is a collateral or peripheral • It runs to the root of the term of the contract.

The above proposition does not apply in the following circumstances: • Divisible Contracts: this exception is illustrated by the decision in Ritchie V. Drake. Hedges demonstrates that there must be an express or implied acceptance of the partial performance for a party to be entitled to payment for work done. the contract is discharged. Colburn. • Prevented performance: this exception is vividly illustrated by the decision in Planche V. QUESTION FIVE (a) LAW 1 . this rule is subject to several exceptions. This is consistent with the decision in Welby V. • Partial performance if accepted: the decision in Sumpler V. Powell exemplifies this doctrine. The legal position is that S is not liable to P at all as his obligation has been discharged in toto. due to the unfairness of the doctrine particularly in promoting unjust enrichment exceptions have been admitted and performance need not be precise and exact. Ltd. This position may be justified on two arguments: o P accepted payment of a lessor sum from a 3rd party and such a promise is binding. (d) • • This problem is based on the rules of consideration and in particular the rule that payment of a lesser sum on the day in satisfaction of larger is not sufficient consideration for the creditors promise to accept the sum in full settlement of the debt. It therefore follows that P’s acceptance of the bags of maize valued at Kshs. • Substantial performance: as was the case in Marshides Mehta and Co. hawk or robe is sufficient consideration. The decision in Cutter V. However. 30. In summation it is arguable that whereas it is true to say that performance of contract must be precise and exact.166 Questions and Answers Revision the common law doctrine of precise and exact which ordains that contractual obligations be observed to the letter. In Pinnels Case Brian C. • Frustration of Contract: if an extraneous or unforeseen occurrence or event makes it impossible for the parties to perform their obligations. Atkinson. V. This is the rule in Pinnels Case (1602). was emphatic that the gift of a horse. Barron Verhegen.000 extinguished S’s obligation to him. o One of the salient exceptions to the rule in Pinnels Case is that payment of a lesser sum in the form of an object extinguishes the entire debt. this assertion in subject to several exceptions. However. J. Each part of the contract must be performed failing which there is no payment or discharge.

Co-ownership may be terminated in various ways for example. A tenants interest is disposable by will.e.Answers – Past Papers 167 This is a situation where two or more persons are entitled to the simultaneous enjoyment of land. It is an action for recovery of the amount due from the mortgagor. • Husband if he was being maintained by his wife before her death. QUESTION SIX (a) Under the provisions of the Law of Succession Act. • Such of the deceased parents. grandparents. • Union in a sole tenant i. each tenant has a distinct fixed share in property which has not yet been divided among the co-tenants. a will is the legal declaration by a person of his intentions or wishes regarding the STRATHMORE UNIVERSITY ● REVISION KIT . Roy. (b) • Name of the applicant i. conversion of a joint tenancy to tenancy in common. sisters. Fore Closure: this is a foreclosing order which bars the mortgagor from redeeming his security. • Partitioning of the property concerned by mutual consent. • Severance i. Suit on personal covenant: This is the right of mortgagee to sue the mortgagor in the event of default. A joint tenancy is characterized by jus accrescendi and the four unities. In a tenancy in common. A co-ownership may be a joint tenancy or tenancy in common. brothers. Ltd and its postal address. Appointment of receiver: the bank is ordinarily empowered by the mortgage to appoint a receiver to take over the security given by the mortgagor to facilitate payment of the debt. children the deceased had taken into his family as his own. half brothers and half sisters.e. step parents. (b) Under the provisions of the Law of Succession Act. A tenants interest cannot be disposed off by will or pass to a beneficiary. • Sale of the property to another person. (c) • • • • Statutory Power of Sale: this is the power of the mortgagee to sell the security if Roy fails to repay the loan. • A drawing of the trade mark. Inventive Mind Co. becomes vested in one person. “dependant” means • Wife or wives and former wife or wives and children of the deceased whether or not maintained by him before death. as were being maintained by him immediately before death.e. step children. The mortgagee must give the requisite notices to the mortgagor i. • A short description of the drug in question.e. grand children.

Ademption: a legacy deems if a particular subject matter bequeathed to a particular beneficiary does not belong to the testator or does not exist. QUESTION SEVEN (a) The rule in Rylands V. • A will includes a codicil. • This rule is to the effect that a person who for his own purpose brings to his land and keeps there anything likely to do mischief if it escapes LAW 1 . Illegality: a legacy fails if the gift its subject matter is illegal by law.168 Questions and Answers Revision disposition of his property after death duly made and executed in accordance with the provisions of the Act. A will may be revoked by the testator in three ways: • Another will or codicil: manifesting an intention to revoke the earlier will. • Get in all the free property of the deceased including debts. • Provide a full and accurate inventory of assets and liabilities of the deceased before the court within 6 months of the grant. • Burning. • Complete administration of the estate in respect of all matters other than continuing trusts within 6 months of confirmation of the grant or such longer time as the court may allow. all expenses of obtaining the grant of representation and administration. • Distribute or retain in trust all assets remaining after payment of expenses and debts. tearing or otherwise destroying: the will for purposes of revocation. • Marriage of the testator: (c) • Provide and pay out of the deceased’s estate. Abatement: a legacy abates if the testators estate cannot satisfy all legacies. Fletcher is the rule of strict liability or liability without fault. • Ascertain and pay all the deceased’s debts out of the estate. • Produce to the court a full and accurate account of the completed administration within 6 months of confirmation of the grant. (d) • • • • • Lapsing: a legacy lapses in circumstances in which the beneficiary predecease the donor. reasonable funeral expenses. Uncertainty: a legacy fails if there uncertainty as to the beneficiary or the subject matter of the legacy. • A will may be oral or written. • Pay out of the deceased’s estate.

e. Phillips. negligence was defined as “the omission to be something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not have done. London and St. (Donoghue V. In the case of professionals it is that of a reasonably competent professional in the field. Fletcher where an employer was held liable for the negligence of his independent contractor. Birmingham Water Works Co. Stevenson). did not act in a manner consistent with a reasonable man. in certain instances negligence is presumed. (b) In Blyth V.e. It must be evident that the defendants conduct amounted to a negligent act or omission.Answers – Past Papers 169 must do so at his peril and is prima facie answerable for all the damage which is a natural consequence if its escape. As was the case in King V. These are the essentials of negligence and are: • • Legal duty of care: the plaintiff must show that the defendant owed him a legal duty of care in the circumstances i. o The defendants degree of care depends on the transaction. It means that the occurrence cannot be explained in a manner inconsistent with the defendants negligence. o Statutory authority. the defendant knew or reasonably ought to have known that acting negligently would injure the plaintiff. o Things naturally on the land. o Act of God. However. STRATHMORE UNIVERSITY ● REVISION KIT . As was the case in Scott V. The plaintiff must adduce evidence to that effect. The principal exceptions to this rule include: o Contributory negligence o Act of stranger or third party. in certain circumstances the defendant owes the plaintiff no legal duty of care. Breach of duty: the plaintiff must demonstrate that the defendant broke his duty of care i. These situations are referred to as res ipsa loquitar which literally means it speaks for itself.” In order to succeed in an action based on negligence the plaintiff must establish certain elements. In such a case. it is for the defendant to demonstrate the occurrence without his negligence. However. This rule was formulated in Rylands V. These are circumstances in which the defendant could not reasonably have forseen the plaintiff suffering any damage. Catherines Dock Co. Ordinarily. o Plaintiffs consent or benefit. the degree of care is that of a man of ordinary prudence.

• It is evident that Parrot Daily Newspaper defamed Mrs. • If the agent signs a negotiable instrument in his own name. Rose Brown by making these allegations. The Wagon Mound II the defendant is generally liable for such loss or damage as is reasonably forseable as was the case in Bradford V. The statement in question is defamatory in the ordinary sense.170 Questions and Answers Revision • Loss or damage: the plaintiff must establish that as a result of the defendants breach of duty he suffered loss or damage. breach of warranty of authority.e. • In this case. • If the agent has exceeded his authority i. Anthony). • An agent is bound to act in good faith for the benefit of the principal and must avoid conflict of interest by disclosure of any personal interest in contracts. Mrs. Rose Brown. (b) • This problem is based on the fiduciary obligations of an agent and the consequences of breach thereof. Rose Brown is to sue the newspaper and the proprietor in damages for defamation. the agent acted contrary to the principals instructions and is guilty of breach of the fiduciary obligations by selling the house to a relative. • If the agent had represented or held himself out as the principal. Robinson Rentals Ltd. Rose Brown is not obligated to establish loss or damage. they refer to Mrs. Mary is entitled to a LAW 1 . My advise to Mrs. were published by the newspaper and the publication was maliciously made in that the Newspaper did not bother to ascertain the factual situation. These must be anexus between the plaintiff’s loss and the defendants breach of duty failing which damages are said to be too remote and irrecoverable. Baxter). In addition he is entitled to sue Sarah in damages for breach of duty. Abraham is entitled to have the house back. • The action must be instituted within one year of publication of the defamatory representation. (c) • This problem is based on the tort of defamation and particular libel which is a defamatory representation is some permanent form as it is in this case.e. • Libel is actionable per se i. (Schakv V. • If the agent has executed a document ordered in his own name. • If the principal does not exist or has no capacity to contract (Kelner V. QUESTION EIGHT (a) • If the agent has expressly or implied consented to personal liability.

STRATHMORE UNIVERSITY ● REVISION KIT .Answers – Past Papers 171 refund of the amount paid as the sale is fraudulent as she is deemed aware of the reserved price.

Cap 486. LAW 1 • . elements of a contract. leases.c. (b) • The writ system • Delay • Procedural technicalities • Inadequate remedies • Absence of appellate function • Non-recognition of trust • Encouraged bribery • Inadequate protection of borrowers (c) • • A Consolidating Statute: is one which brings together into a single Act of Parliament the contents of a number of Acts in a particular subject for example the Companies Act. types of contracts. Its core fields include principles of tort and the individual torts. Family law This branch of law is concerned with the dynamics of the family as a social unit. A codifying statute: is one which arranges all existing law both statutory and case law in a particular subject into a statutory form. Law of succession This is a branch of law concerned with the disposition of a deceased’s property intestate and intestate succession. Law of property: This branch of law deals with the jurisprudence of interest in land as well as proprietary transactions e. easements. It does not usually change the law.g. terms vitiating factors.g. Law of trust: This is a branch of equity concerned with the rights and duties and other principles regarding the holding of property of one person by another.172 Questions and Answers SUGGESTED SOLUTIONS December 2005 QUESTION ONE Revision (a) Law of Contract: This is a branch of commercial law which deals with the rules governing contracts generally e. mortgages charges. Law of torts This branch of law is concerned with the protection of personal and proprietary rights. illegality. discharge remedies et.

(b) Declaration: • This is a high court order which authoritatively articulates the legal position of the matter before the court for example and a declaration of a persons individual rights. • It is ordinarily made in circumstances in which a court tribunal or official has no jurisdiction to proceed in a particular manner e. STRATHMORE UNIVERSITY ● REVISION KIT . non-compliance with an essential preliminary requirement. QUESTION TWO (a) Composition • Judges of this court are known as “judges of appeal” and are the chief justice and such other number as prescribed by parliament but not less than two. a judgement contains. • The court exercises limited original jurisdiction in that it has capacity to punish contempt of court and can stay the execution of an order of the High court. • Decisions of this court are final. improper constitution. • The order is incapable of being executed. though ordinarily three judges sit on substantive matters. Jurisdiction • This is an appellate court with jurisdiction to hear appeals in criminal and civil cases from the High court. • The full court consists of five judges. • sentence or order.g.Answers – Past Papers 173 • It brings together scattered laws in a particular subject for example the Sale of Goods Act. Cap 31. • Disobedience is punishable by contempt of court. (d) “Judgement” in this context is construed to mean the “script” read out by the judge or magistrate in a particular case. Prohibition: • This is an order directed to usurpers forbidding them from commencing or proceeding in a cause pending before them. • a summary of evidence • findings of fact both direct and inferential • principles of law applicable to the relevant case • the decision for example guilty or not guilty. In the premise. • The order prevents a court of tribunal from exceeding or continuing to exceed its jurisdiction or infringing the rules of natural justice.

before the court to show cause why he should not be released forthwith. • It is to the effect that if the literal or plain meaning of a word. courts. Mandamus: This is an order of the High Court directed to any person corporation or court requiring the same to do a particular thing appertaining to a public office or duty if the same has been refused by the official or public authority. Mischief rule: • This rule is also referred to as the rule in Heydons case (1584) and is the oldest rule of construction. o An error on the face of the record.174 Questions and Answers Revision Certiorari: • This is an order of the high court to a subordinate court. it should be accorded the literal natural or dictionary meaning sentences should be given their ordinary grammatical meaning. Golden rule • This rule is to some extent an exception to the literal rule. Habeas Corpus: • Literally means produce body. (c) Literal rule: • This is the plain meaning rule. • It is to the effect that if the wording of the act is clear and exact. • This is an order of the high court directed to a detaining authority demanding the production of the body of the detainee. LAW 1 . tribunal or authority requiring it to produce a certified copy of a particular case for review and if found inappropriate the decision is quashed. phrase or sentence is absurd or repugnant its meaning may be varied or modified so as to avoid the absurdity or repugnancy. public officials and administrative authorities. • This rule was explained in Grey V. • Technical terms must be given their technical meaning. • Its function is to secure the release of a person in unlawful custody. • The order enables the high court to examine proceedings in other bodies to determine whether there have been any irregularities and may be made where a court. • No word is added or removed. • It is generally availed in circumstances in which a persons right of personal liberty is violated. Pearson. • It tests the legality of the detention or imprisonment. tribunal or authority has: o Exceeded jurisdiction o Violated the rules of natural justice. It secures performance by tribunals.

Answers – Past Papers 175 • To apply the rule. • Ejusdem generis: • This rule is applied to interpret things of the same genus and species. Expressio unius est exclusio ulterius • Literally means the expression of a thing implies the exclusion of another. Noscitur a sociis: This rule is to the effect that words of doubtful meanings derive their colour and precision from the words and phrases with which they are associated. interfere with individual vested rights. • Limitation of liability by shares means that a member can only be called upon to contribute to the assets of the company the amount if not not not not not not intended intended intended intended intended intended to to to to to to change or alter the common law. the general words must be interpreted as being limited to the class of persons or things designated by the particular words. the statute only applies to the instance identified. so as to interpret the same in such manner as to suppress the mischief and advance the remedy. • This rule is to the effect that if words of particular signification in a statute are not followed by words of general signification. apply retrospectively. • It is to the effect that where general words follow particular words in a statute. To apply the rule the court must decipher and discuss four matters alluded to in Heydons case. Presumptions • The statute was • The statute was • The statute was • The statute was • The statute was • The statute was QUESTION THREE (a) Company limited by shares: • This is a limited liability company. The rule was explained in R V. have extra-territorial effect. the court examines the statute to be interpreted so as to ascertain the defect or mischief it was intended to remedy. Other rules include: Rank principle Statutes in Pari materia A statute must be interpreted as a whole. STRATHMORE UNIVERSITY ● REVISION KIT . Edmundson. affect the presidency. impose liability without fault.

it all partners agree. • Disclose any personal interest to avoid conflict of interest. Lapse of time Termination at will Illegality Charging of a partners interest by a court order for a private debt. • Easy to from in that there are no legal formalities to be complied with.176 Questions and Answers Revision any outstanding or unpaid on the shares held beyond which the member is not liable. • Partners enjoy relative privacy as the firm is not obliged to publish anything. (c) Obligations of a limited partner • Not to take part in the management of the firms business. a creditor is entitled to attach personal assets of the individual partners. • To assign his share to another person. (b) • Sharing of loss reduces the amount borne by a single partner. (c) • • • • • • • Death of a partner unless the articles of partnership provide otherwise. • Partners are entitled to participate in the management of the firms business. • Right not to be compelled to contribute to the assets of the company. LAW 1 . Rights of a limited partner • To inspect the firms books of accounts. • Partners can freely dispose of their interests to other partners. • Limitation of liability by guarantee means that a member can only be called upon to contribute to the assets of the company the amount he undertook to contribute if the company was would up during his membership or within one year of cessation of membership beyond which the member is not liable. • Not to withdraw or receive back his share during the currency of the firm. Bankruptcy of a partner unless the partnership deed otherwise provides. • To receive his share of profit. • Not to compete with the firm. Performance of the undertaking. • In the event of insolvency. • Partnerships enjoy the requisite flexibility in that a firm is free to change the nature of business. Company limited by guarantee: • This is a limited liability company.

(b) Though acceptance is an integral part of a contract. C made all offer to take it at Kshs. The prospective buyer makes the offer. Firms business can only be carried on at a loss.000 but the offer was rejected. QUESTION FOUR (a) The advertisement by A is an invitation to treat. 500. Continuous and willful breach of the partnership agreement. Partners conduct or behaviour is prejudicial to the firm. in this case there was no acceptance as Bs letter was merely an offer to A to take the car at that price. (c) There is no contractual relationship between C and A on account that after he had inspected the car and satisfied himself that it was accepted to him. In any event. STRATHMORE UNIVERSITY ● REVISION KIT . This position is consistent with a sale by display where a seller displays goods with cash price tags. Bell. This reasoning is consistent with the decision in Fisher V. A is simply inviting would be buyers of the motor vehicle to make an offer to buy the same at that price which offer A may accept or reject. Permanent incapacitation. Circumstances are such that it is just and equitable that the firm be wound up. This effectively terminated Cs offer to A. there is no express or implied intimation by A that anything be communicated by post. Lunacy or permanent insanity.Answers – Past Papers 177 • • • • • • • Mutual consent: if all partners agree.

Accountability: explain application of money or assets coming into his hands. Confidentiality: must not disclose his dealings with the principal to third parties. Since D did not even make an offer to buy the motor vehicle.178 Questions and Answers Revision (d) There is no contractual relationship between D and A. 600. His change of mind amounts to a breach of contract for which he is liable in damages A is therefore entitled to sue E. Keep the principal informed of his dealings with third parties. it is implied that the goods shall correspond with the description. Van Tienhoven where the offeror purported to revoke the offer after it had been accepted by the offeree.000. Estoppel: must respect the principals title. Bona fide: act in good faith for the benefit of the principal Disclosure: must disclose personal interest to avoid any conflict of interest. (b) Right to sell: the seller has the right to sell the goods when property is to pass. QUESTION FIVE (a) • • • • • • • • • • • Performance: discharge of the undertaking as agreed. Correspond to description: In a sale by description. Separate accounts: must maintain separate accounts of his assets and those of the principal. LAW 1 . Personal performance or non delegation: must perform the undertaking personally. This created a legal obligation on the part of E to take the car. Fitness for purpose: Where the buyer expressly or impliedly makes known to the seller the particular purpose for which the goods are required it is implied that the goods shall be reasonable fit for such purpose. The fact that A agreed to her request to go to the bank cannot render A liable. This position is consistent with the decision in Byrne V. Obedience: acting in accordance with the principals instructions or authority. Care and skill: exhibit a degree of care and skill appropriate to the circumstances. (e) There is a contractual relationship between A and E. This is because A accepted Es offer to take the car at Kshs.

it is implied that the same shall be of merchantable quality. • inform the hirer the cash and hire purchase price of the goods. • disclose any defects in the goods or title. • ensure that the hirer has quiet possession of the goods. Duties • deliver the goods to the hirer. • furnish a copy of the hire purchase agreement to the hirer. Correspond with sample: In a sale by sample it is implied that the goods shall correspond with the sample in quality. QUESTION SIX (a) This a person who fully or wholly depended on the deceased for maintenance. • ensure that the goods are reasonably fit for the purpose for which they are hired. • confer a defect free title. Cap 160 provides a comprehensive definition of the term. (c) Rights • recovery of installments in arrears • sue in damages for breach • retention of the sum paid • to be notified of any change in location of goods • repossess the goods should circumstances justify. (b) • Writing: there must be some writing the law does not insist on any special form or wording. STRATHMORE UNIVERSITY ● REVISION KIT . Free from defect: In a sale by sample it is implied that the goods shall be free from any defect rendering them unmerchantable which would not be apparent on reasonable examination of sample. However section 29 of the Law of Succession Act. Compare bulk with sample: In a sale by sample it is implied that the buyer shall have a reasonable opportunity of comparing the bulk with the sample.Answers – Past Papers 179 Merchantable quality: If goods are bought by description from a seller who deals in such goods.

if dead. Attestation: the will must be attested to by at least two competent witnesses who must be have seen the testator or that other person sign or had received a personal acknowledgment of the signature or mark. All witnesses must sign the will in the presence of the testator but need not be present at the same time. QUESTION SEVEN (a) LAW 1 . Position of signature or mark: the same must be place as to show that it was intended to give effect to the writing as a will. • Devolves upon the state and paid into the consolidated fund. if dead. • The person to whom it was granted has failed to proceed diligently with the administration of the estate after due notice and without reasonable cause. if dead. • Brothers and sisters and children of deceased brothers and sisters in equal shares. • The grant has become useless and inoperative through subsequent circumstances. • The person to whom it was granted has failed to produce to the court any inventory or account of administration as required by law. • The closest relative up to and including the 6th degree of consanguinity. if dead. (d) • The proceedings to obtain the grant were defective in substance. (c) • Father. if none.180 Questions and Answers Revision • • • • • Signature or mark: the will must contain the signature or mark of the testator or that other person who signs in the presence and in accordance with the directions of the testator. • Half-brothers and half-sisters and children of deceased half-brothers and half-sisters in equal shares. • The grant was obtained fraudulently by making false statements or concealment of something material to the case. • The person to whom it was granted has failed to apply for its confirmation within one year or such longer period as may be allowed even after notice. • The person to whom the grant was made has produced to the court any inventory or account of administration which is false in any material particular. The law does not prescribe any special form of attestation. • Mother. • The grant was obtained by means of an untrue allegation of facts.

• The defendant is only liable if a reasonable person would have forseen the likelihood of the loss or damage otherwise the same is said to be too remote and irrecoverable.Answers – Past Papers 181 • • • • • • • The plea of res ipsa loquitur: literally means it speaks for itself. • Under this principle. London and St. the plaintiff has no evidence of the negligent actor omission of the defendant. Robinson Rentals Ltd. if some form of loss or damage was reasonably forseable.e. This is a rule of evidence applicable in cases of negligence where want of care is presumed. This principle was applied in Scott V. the defendant is liable for the loss or damage irrespective of its character. o whatever occasioned loss or injury was within the exclusive control of the defendant. it shiffs the burden of proof to the defendant who must now explain the circumstance and if the explanation is reasonable. It may be relied upon by the plaintiff where the occurrence cannot be explained otherwise than the defendants negligence. • Simply put. the occurrence must be consistent with the defendants negligence. For the principle to be applicable the following conditions are necessary: o absence of explanation i. Once pleaded by the plaintiff. his servants or agents. STRATHMORE UNIVERSITY ● REVISION KIT . As was the case in Bradford V. (ii) • This is a rule applicable in the recovery of damages by the plaintiff. The principle of res ipsa provides prima facie evidence of negligence on the part of the defendant. the plaintiff looses the case for want of prosecution. the defendant cannot allege that the victim would have suffered no injury or less injury but for his unusually thin skill or weak heart. Catherines Dock Ltd. • This principle was applied in The Wagon Mound Case where it was held that the negligent ship captain was not liable as the loss in question was not reasonable forseable. • It is the likelihood of the loss or damage being caused by the negligent act or omission of the defendant. (b) (i) • The principle of reasonable forseability is applied in determining whether the defendant is liable for the loss or damage arising. • It is to the effect that the defendant must take the victim as he finds him.e. o such a thing does not ordinarily happen if care is taken i.

applies to leases for undefined duration.e. Although there is no evidence why the brakes failed. He knew or reasonably ought to have known that using a defective motor would endanger other road users. such a thing does not ordinarily happen if a motor vehicle is property maintained. Kagio can easily establish this element of negligence.e. Peter Ole Yang owed other road users including Kagio. • This is an obvious case of negligence on the part of Ole Yang and cannot escape liability.e. a legal duty of care. • It is characterized by the “four unities” i. Effluxion of time or expiration of time. jus accrescendi i. Since the facts speak for themselves and the court will presume negligence on the part of Peter.e. as he is unaware of the cause of the crash. • What may appear problematic. o Unity of title o Unity of possession o Unity of interest o Unity of time • It is also characterized by the right of survivorship i. Surrender – to the immediate landlord. • As a road user. LAW 1 . • It is also relatively easy for Kagio to prove loss or damage i. In such a case. proprietary rights of a deceased proprietor devolves upon the survivors. • The property enjoys all the properties of a single proprietor. though not quite is establishing breach of duty. Forfeiture – under the forfeiture clause or breach. damage to his motor vehicle and injury. QUESTION EIGHT (a) (i) • Joint tenancy is a situation in which property is owned by two or more persons. (ii) • • • • Notice .e. But he may conveniently plead res ipsa loquitur. • In our estimation Peter will be held liable for negligence. (c) • This problem is based on the tort of negligence. In this case Peter Ole Yang should contemplate the possibility of a claim against him in damages for negligence i. crashing into James Kagios Motor Vehicle and injuring him.182 Questions and Answers Revision This is the case in circumstances in which the plaintiffs injury is aggravated by a combination of his abnormality and some external force which forseably and naturally intervenes after the accident. the burden of proof shifts to Peter to explain the accident and can only escape liability by proving that the accident occurred without any actor omission of negligence on his part which is this case is a tall order.

traditionally could be restored to the owner. • Equitable interest: this is a right recognized by equity only and enforceable against all others except a bona fide purchaser of a legal interest without notice of the equitable interest.Answers – Past Papers 183 • • • • • Merger – tenant acquires the reversion. E. examples include restrictive covenants. easement. leaseholds are deemed to be personalty. (b) (i) • Generally signifies interest in land. • It is enforceable against every one. • It is an interest which is capable of subsisting or being conveyed or created at law. Becoming a satisfied term: if a lease is granted as a security for the payment of money. Frustration: in National Carriers Ltd. Enlargement – a lease may enlarge to a fee simple if the tenant executes a deed of enlargement. The effect of a valid disclaimer is the same as if there had been a surrender. Disclaimer: a right to disclaim a lease arises only by statute. immovables. the lease and reversion must be vested in the same person.g. the term becomes satisfied and the lease automatically ceases when all the money has been paid. However. • Personal property: this is personalty or movables sometime said to be chattels or chattels real. Traditionally not recoverable if dispossessed. STRATHMORE UNIVERSITY ● REVISION KIT . legal mortgage. (ii) • Legal interest: this is a right over the land of another. Panalpina Ltd (1981) the House of Lords held that the doctrine of frustration can apply in a rare case to a lease of land so as to bring the lease to an end. V.

Companies Act. However. Publicity: it is the most widely published source of law. Kadhis Court Act. the term ‘statute’ can be used to describe a category or type of delegated legislation e. economic.184 Questions and Answers MAY 2006 SUGGESTED SOLUTIONS QUESTION ONE (a) Revision “Statute” literally means Act of Parliament. under the Universities Act. This is law made by parliament in exercise of the legislative power conferred upon it by the Constitution. Superiority: it prevails over all other sources of law other than the Constitution.g. Court of Exchequer. Common law may be described as a branch of the law of England which was developed by the ancient common law courts e. Examples include Agriculture Act. These courts applied the peoples customs in dispute resolution. Equity was developed by the Lord Chancellors Courts. The evolution of common law is tied to the doctrine of stare decisis and the writ system. thereby elevating the customs to rules of law. LAW 1 . A statute begins as a Bill which goes through several stages to become so. non recognition of trusts etc. Common law differs from equity in many respects: • It developed before equity i. General application: consists of general principles applicable at different times. inadequate remedies. They universalized and standardized the customs. Judicature Act. Democratic: it is made by representatives of the people and is therefore democratic. it is an older system of rules. Kings Bench and Common Pleas from customs.g. for example procedural technicalities. These include: • • • • • • • (b) Resolution of legal problems: It enables society resolve legal problems as and when they arise by enacting new statutes or amending those in existence. Councils of Public Universities are empowered to make “statutes. Dynamism: enable society keep pace with changes in other spheres e.” Statute law enjoys certain advantages. • It was developed by a different court system. writ system. delay.e. Uniformity: regulates the conduct and activities of all indiscriminately.g. political etc. The growth of the common law was characterized by various challenges. usages and practices of the English people.

It enables disputing parties come to an agreeable and acceptable settlement. parliament is empowered to postpone the coming into operation of a law and may make laws with retrospective effect. he must within 14 days thereof submit the speaker of the National Assembly. while equity developed many others e.g. Equity courts relied on other principles.Answers – Past Papers 185 • • • • • (c) • The common law courts were guided by the writ system and doctrine of stare decisis. a memorandum indicating the specific provisions of the Bill which in his opinion should be reconsidered by the National Assembly including his recommendations. rescission. A statute comes into operation on the date of publication in the Kenya Gazette or on such other date as the minister concerned may thereafter appoint by a notice in the Kenya Gazette. If the resolution approving the Bill in its original form is supported by not less than 65% of all members of the National Assembly (excluding the ex-officio members) the president must assent to the Bill within 14 days of passage of the resolution. the parties endeavour to come to an interdependent joint decision concerning the terms of agreement on the issues between them. Common law had only one remedy. Common law acts in rem while equity acts in personam. • • • QUESTION TWO (a) • Negotiation: this is an alternative dispute resolution mechanism which involves the process of interaction between disputing parties and without compulsion by a 3rd party adjudicator.” However. If the two sources of law conflict equity prevails. The National Assembly must reconsider the Bill taking into account the comments of the president and must either: o Approve the presidents recommendations with or without amendment and resubmit the Bill to the president for assent or o Refuse to take the presidents recommendation and approve the Bill in its original form. namely damages. injunction. Under section 46 (6) of the Constitution “A law made by parliament shall not come into operation until it has been published in the Kenya Gazette. Common law developed as a complete system of rules while equity did not. It proceeds through exchange of information thereby STRATHMORE UNIVERSITY ● REVISION KIT . usually a compromise. Under section 46 (4) of the Constitution of Kenya. if the president refuses to assent to a Bill. for example fairness. specific performance etc.

flexibility convenience. The exercise judicial or Quasi judicial functions. impartial and neutral third party with no authoritative decision making power. Tribunals: these are bodies created by statute to adjudicate specific disputes. o An arbitral award may be set aside by a court of law in application.g. Arbitrators may be appointed by the parties. Each party presents its case. Arbitrators enjoy certain powers. The parties to the dispute appoint an experienced person to preside at a two day information exchange. mediation. o The law on arbitration is contained in the Arbitration Act. preferences and proposals. retired judge to arbitrate difficult cases. and adjudication in a new way. o The mediator assists the parties to reach their own agreement. Officials from both sides confer to evaluate the case and come to a settlement. o It is the least intrusive form of third party involvement in a dispute. Mediation: this is a dispute resolution mechanism in which a neutral and impartial third party assists disputing parties to negotiate an acceptable settlement of contested issues to avoid or overcome an impasse or if the parties are unable to negotiate. o It is merely the intervention into a dispute or negotiation by an acceptable. LAW 1 . speed. These bodies enjoy certain advantages over ordinary courts e. informality. Arbitration: this is a method of settlement of civil disputes out of court by arbitrators or arbitral tribunals that make arbitral awards. committees etc. cheap. A dispute may be referred to arbitration by the disputing parties. examples include industrial court licensing boards.186 Questions and Answers Revision • • • • • • • • (b) permitting a learning process by which each party formulates modifies and readjusts expectations. The parties discuss the case and if there is no settlement the case goes back to court. It first developed in California.g. statute or a court of law. a 3rd party of a court of law on application. Summary jury trial Neutral expert fact finding. 1995. It is facilitated by negotiation. Med-Arb this is a dispute resolution mechanism whereby an arbitrator acts as a mediator in a single dispute. failing which the presiding officer gives his view of how the case would be resolved in court. Mini trial: this is a dispute resolving hybrid process that structures private negotiation by combining elements of negotiation. Rent-a-judge (private judge): this is a situation where arbitration employs experienced persons e. specialization etc.

men. the cruel and the kind are treated equally. practices and attitudes. Social agents of peace: courts assist in dispute resolution with binding decisions. old. STRATHMORE UNIVERSITY ● REVISION KIT . sickly. friction or dispute by resolving disputes.Answers – Past Papers 187 • • • • • Prevention of anarchy: Courts of law assist in the prevention of anarchy in that they act as guardians of the law by ensuring that people do not take the law into their hands. dwarfs. Adjusters of law: law is a system of rules for social ordering. They provide remedies to aggrieved parties legal remedies reaffirm social norms. They ensure that giants. women. Courts apply the law to resolve specific disputes since society is dynamic courts adjust the law to ensure that it keeps pace with such changes. the good and evil. They do so through redefinition of legal terms and expressions interpretation of written law on the basis of social conditions. linguistic context.g. clever ignorant. in the law of contract courts uphold patterns of behaviour and expectations in society thereby enabling person predict what others will do and thus organize their conduct. Protection of expectations: persons can foresee the consequences of their individual and collective conduct which builds confidence in society e. healthy. Restoration and Maintenance of social equilibrium: Courts restore the equilibrium in social order if disrupted by conflict. young. They defuse tension in society and enhance togetherness.

the domical of origin is held in abeyance but is reverted to if the domicil of choice is lost.188 Questions and Answers QUESTION THREE (a) • (i) Domicil of Origin This is the domicil which a person acquires at birth. o be of good character. A person born legitimate acquirers the domicil of the father. o have been ordinarily and lawfully resident in Kenya for a period of 4 years or for periods amounting in the LAW 1 . o have adequate knowledge of the Kiswahili language. • • • (ii) An alien may become a citizen of Kenya by naturalization or registration. A person born illegitimate acquires the domicial of the mother. For example. Domicil of origin cannot be lost. o Have an intention of making the country his permanent house. An infant legitimated by the marriage of its parents the domicil of the father. An adopted infant acquires the dominal of the adaptor. The minister must be satisfied that the applicant has fulfilled certain minimum conditions: The applicant must: o have attained the age of 21. Only a person who has attained the age of majority and has the requisite capacity can acquire a domicil of choice. A person born posthumously acquires the domicil of the father as at the date of death. • Naturalization: under section 93 (1) of the Constitution any alien may become a citizen of Kenya by making a formal application to the minister. Revision • • • • • • • • Domicil of Choice This is the domicil which a person acquires by choosing which country to make his permanent home or residence. The person must: o Take up actual residence in the country of choice. Once a person acquires this domicil. Under Kenyan law a person acquires a domicil or origin as a matter of course. It can only be suspended when a domicial of choice is acquired. o have been ordinarily and lawfully residing in Kenya for 12 months on this immediate date before the application. o intend to continue residing in Kenya if naturalized.

o a citizen of any common wealth country who has been ordinarily and lawfully resident in Kenya for at least 5 years. o The minister may register the applicant as a citizen of Kenya. Kenyans as her own citizens. Such application may be made during the lifetime of the husband.Answers – Past Papers 189 aggregate to not less that 4 years during the 7 years. Pursuant to a formal application to the minister and must fulfill any of the following conditions: o a woman married to a citizen of Kenya is entitled to be registered on application. Nissen (1970). • Has specialized or qualified management. QUESTION FOUR (a) • Rectification is the process whereby a document. provided the applicant has been ordinarily and lawfully resident in Kenya for at least 5 years. A High degree of proof is needed so that certainty is not undermined.1963 where neither parent had been born in Kenya. members liability to contribute to the assets of the company is limited by shares or guarantee. o a citizen of any African country which registers. Registration: An alien may be registered as a citizen of Kenya.e. It is equitable in character and therefore discretionary. the meaning of which has already been ascertained is rectified so that it gives effect to the intention of the parties. Before the court can order rectification the party seeking the same must prove certain facts. o any person born in Kenya before 11. o a person born outside Kenya whose mother is a citizen of Kenya. o The minister may thereupon grant of applicant a certificate of naturalization. namely: • Convincing proof or evidence showing that the document fails to record the intention of the parties. It is a remedy concerned with defects not in the making but in the recording of a contract. • Has capacity to own or hold property and therefore can invest.12. (Joscelyne V. • (b) • A private company has a wider capital base by reason of the wide spectrum of membership. Immediately receding the 12 months above. • A private company enjoys perpetual succession. • Shares or other interest in a private company are transferable. • Can borrow by floating charge. STRATHMORE UNIVERSITY ● REVISION KIT . • It has limited liability i.

This is because delay defeats equity. A freehold owner can transmit the rights to future generations indefinitely. Though part of the loan was used for a lawful purpose the entire contract is tainted with illegality. • A contract to commit a crime tort or fraud (Bigos V. The state cannot determine the duration though it is the granting authority. It means that the contract cannot be enforced by reason of being contrary to the public good or does not promote the public good.g. • My advise to Wanyonyi Peter is that he cannot recover the amount borrowed from Simiyu Tito as he has no enforceable rights. A contract may be declared illegal by an Act of parliament or court of law. This is because illegality renders a contract unenforceable and the operative principle in such a case is that gains and losses remain where they have fallen. An illegal contract is unenforceable. However the contract is tainted with illegality in that part of the money borrowed is being used to promote corruption as well as facilitate the commission of a crime since Wanyonyi Peter is aware of the illegality the borrowing is unenforceable.) • A contract liable to promote sexual immorality. The applicant has sought rectification of the document at the earliest possible opportunity or instance and the defendant is not a bona fide purchaser for value without notice. trading with alien enemies. champerty or maintenance. • A contract liable to defraud state revenue (Miller V. Karlinski). QUESTION FIVE (a) Freehold ownership of land: this is a situation where the bundle of rights conferred upon the holder are exercisable for an indefinite duration. Examples of illegal contracts • A contrast to pay wages or salary in kind is illegal by virtue of the provisions of the Employment Act. (b) Illegality does not necessarily mean that a criminal offence is involved. The document was proceeded by a concluded contract or a continuing common intention. College of Ambulance and Another. It is contrary to public policy. The borrowing by Simiyu Tito is on the face of it an ordinary contract between a lender and a borrower. LAW 1 .g. • A contract liable to promote corruption in public (Parkinson V.190 Questions and Answers • • Revision • The document does not embody the intention of both parties. • A contract prejudicial to the administration of justice e. These are contracts Contra bonos mores. Boostead). • A contract prejudicial to public safety e. (c) • This problem is based on borrowing and illegality.

conversion from other registers etc. • Forfeiture: This is the right of the landlord or grantor to reenter the demised premises and thus prematurely terminate the lease. enfranchisement. • A lease creates a relationship of landlord and tenant between the grantor and the grantee. This will be actuated by certain breaches. at sufferance etc.P.g. Examples include fee simple and absolute proprietorship. If there is no one to inherit a freehold ownership is devolves upon the state by bona vacantia or the doctrine of escheatment. L. • The lessee acquires the right to exclusive possession of defined premises for a certain duration and the rights conferred are definite or capable of being defined. misuse and dispose the land. tenancy at will. whereupon the land reverts to the grantor. Under the R. • Surrender: this is the giving up by the tenant to the landlord of his interest in the premises. • Leaseholders are acquired by contract and may terminate in various ways e. It is exercisable pursuant to a forfeiture clause. • Both the lessor and lessee are subject to various obligations. Act a merger must express.Answers – Past Papers 191 • • The proprietor has the right to use. • Leasehold ownership of land • This is a situation whereby a person acquires a secondary interest on the land of another for a specified duration. merger etc. An easement may be created in the following ways: • Express grant or reservation: this is a situation whereby the proprietor of land or lease gives an easement over his land or STRATHMORE UNIVERSITY ● REVISION KIT (c) . registration. Examples include fixed period tenancy periodic tenancy. exclusive possession. • Expiration or lapse of time: All fixed term leases generally terminate or expiration of such time. transfer consolidation. • Conversion. It may also be implied from the conduct of the tenant. It must be made in a prescribed form executed by the tenant.g.T. effluxion of time. • Merger: under the provisions of the I. Freehold ownership may be the land acquired by inheritance. surrender forfeiture.A a lease of immovable property determines if the property in question becomes vested in the lessee. (b) A lease may be terminated in any of the following ways: • Notice: either party may notify the other its intention to terminate the lease where the tenancy does not specify the date of termination or intends to terminate the same earlier. • Leasehold consists of the quantum of rights conferred upon the lessee or grantee e.

Such an easement must be registered against the servient tenement. However. (d) • This problem is based on the obligations of the lessee in a tenancy agreement. • As a lessee Ray Matata is bound to observe certain obligations. The endorsement converts an order to a bearer bill capable of further negotiation. • Charles Kabue is entitled to feel aggrieved and has certain remedies for redress. Statute: the public roads and roads of Access Act give the minister power to create easements. o Rent arrears. • Restrictive endorsement: this is an endorsement which prohibits further negotiation of the bill. he is bound not to sub-let the premises without Charlie Kabue’s consent. The transaction is effected by execution of an instrument in a prescribed form. he cannot terminate the lease by forfeiture unless the lease contains a forfeiture clause. There are four types of delivery namely: • Blank endorsement: this is an endorsement which does not specify the endorsee. • It is evident that Ray Matata is in breach of the lease agreement in two ways namely: o Sub-letting the lease premises to Ben Chege. • Conditional endorsement: this is an endorsement which either exempts the endorser from liability if the bill is dishonoured (sans recours) or inserts a condition subject to which the amount is payable. (b) LAW 1 . (iii) Terminate the lease by notice or forfeiture as the circumstances justify. For example. My advise to him is to: (i) Sue in damages for breach of the lease agreement.192 Questions and Answers Revision • • land comprised in the lease. Prescription: a person acquires an easement over anothers land through uninterrupted usage for 20 years with knowledge of the owners. • In addition the lease provides that the premises must not be used for any other purpose. • Special endorsement: this is an endorsement which specifies the person to whom or to whose order the bill is payable. (ii) Sue for the amount outstanding as rent (action for money). It renders the endorsee the payee but has no capacity to negotiate it further. QUESTION SIX (a) Order bills are negotiable by endorsement and delivery.

4. o Firstly. But on presentation the bill was dishonoured. It is apparent that the bill was obtained fraudulently by Boaz Ngao and Abel Rigo appear to have been aware of the fraud hence the fear that the bill might lapse. Presentation for acceptance: the holder is bound to present the bill to the drawee for acceptance. QUESTION SEVEN STRATHMORE UNIVERSITY ● REVISION KIT . Presentation for payment is essential for all bills and mandatory in every case unless excused. The obligations of a holder of a bill depend on the point at which the bill is held. It must be presented within a reasonable time of negotiation or on the date it falls due or within the three days of grace. it is arguable that Abel Rigo.Answers – Past Papers 193 • A “holder” is a person who is in possession of a bill as of right either as the payee or endorsee or bearer. In view of the foregoing it is evident that Abel Rigo is not a holder in due course. o Secondly. 3. This duty arises where the holder receives a bill which has not been accepted. Presentation for payment: it is the duty of the payee to present the bill to the acceptor for payment. A bona fide holder acquires a defect free title and can sue on it in his own name. Abel Rigo is not a bona fide transferee since he was aware of the fraud. This problem is based on negotiation and dishonour of bills of exchange. Failing which the drawer and endorsers are discharged. These duties include: 1. by non-acceptance or non-payment the payee is bound to have the same noted and protested by a notaries public. • • • (c) • • In summation. Abel Rigo is the recipient of the bill of exchange and for value. 2. Noting and protesting: If a foreign bill is dishonoured. It may be verbal or written. cannot claim to be a holder in due course since the circumstances in which he holds the bill are not similar to those prescribed by section 29 of the Bills of Exchange Act which defines a holder in due course. Notice of dishonour: in the event of dishonour the payee is bound to notify the party or parties liable that the bill has been dishonoured. A holder of a bill may be a holder for value or holder in due course. No particular form of notice is essential. he was aware that Boaz Ngao had a defective title.

if present. for a donatio Mortis Causa to take effect the following conditions must be fulfilled. Under section 31 of the Law of Succession Act. • The donor was at the time contemplating death by reason of a present illness or present or imminent danger. • Where person entitled to administration in the case of intestacy is absent from Kenya and no person equally entitled is willing to act letters of administration may be granted to the attorney of the person. • Where the executor is absent from Kenya and none other is willing to act. • Where there is no will forthcoming but there is reason to believe that there is one in existence. • The donor delivered to the intended beneficiary possession or means of possession of the property. • Where any person to whom. • Where an executor appointed generally gives authority to an attorney to prove a will on his behalf and such authority is limited to a particular purpose the letters of administration shall be accordingly limited. • Where the will is in the possession of a person residing outside Kenya who has refused or neglected to deliver the same but has transmitted a copy to the executor. • The donor gives movable property (including debts) capable of being disposed of by will. • Where an executor is appointed for any limited purpose specified in the will the grant shall be limited for that purpose.194 Questions and Answers (a) Revision A court of law may make a limited grant either in terms of time or purpose in certain circumstances. letters of administration might be granted is absent from Kenya. a grant may be granted to the attorney of the executor for the use and benefit of his principal. • Where there are two or more minor executors and none has attained the age of majority the grant is limited until one of them attains full age. • Where there is a pending suit touching on the validity of the will of the deceased person or for obtaining or revoking any probate or any grant of letters of administration (administration pendente lite). the same may be made to his attorney. documents or other evidence of title thereto. • Where a will has been lost or mislaid since the testators death or has been destroyed by wrong or accident but a copy thereof has been preserved. • Where a person dies leaving property of which he was the sole or surviving trustee or had no beneficial interest on it in his own account and leaves no general representative or one who is unable or unwilling to act a limited grant may be made to the person beneficiary interested in the property or some other person on his behalf. LAW 1 (b) .

The donor must not survive the illness or danger. STRATHMORE UNIVERSITY ● REVISION KIT . Appropriate at anytime after confirmation of the grant any of the assets vested in him in its actual condition or state of investment towards the satisfaction of any legacy bequeathed by the deceased or any other interest or share of his estate.Answers – Past Papers 195 • • • (c) • • • • Enforce by suit or otherwise all causes of action surviving the deceased or arising out his death for his estate. The gift is made in circumstances that show that the donor intended the same to revert to him should he survive the illness or danger. The beneficiary must survive the donor. Assent to the vesting of special legacies in the beneficiary at anytime after confirmation of the grant. Sell or otherwise turn to account all or any part of the assets vested in him if necessary or desirable.

This position is consistent with the common law which postulates that where overhanging branches of fruit trees extend beyond the LAW 1 . At common law it is trespass to place anything on or inland in the possession of another for example placing rubbish against the wall or growing a creeper up the wall of another (Simpson V. • Destroying or altering another’s goods. Pattinson(1939) or (Dean V. There is a direct infringement of the plaintiffs possession. Clayton (1817). In this case F was entitled to cut down the overhanging branches of the mango tree to abate the nuisance. It is evident that B has made an intrusion on the Cs land. The legal principle in this case is that whereas the branches overhanging Fs land amounted to nuisance and F did the needful by cutting them down the ripe mangoes from the branches belonged to G and giving them away amounted to conversion for which G has an action against him in damages. • Refusal to surrender on demand. • C has an action in damages against B and since the tort of trespass to land is actionable per se C is not obliged to proof any actual damage. • Disposition without delivery. • Receiving another goods • Misdelivery of goods • Disposition with delivery. (iii) • • • The over hanging branches on Fs land constituted the tort of nuisance which is not actionable per se. Weber (1925). Judicial authority on this point is very clear i.196 Questions and Answers QUESTION EIGHT Revision (a) The tort of conversion may be committed in any of the following ways: • Taking another’s goods or dispossessing. • Cs action is based on the premise that Bs entry into his land was unjustified. (b) (i) • The entry by B into Cs land is unauthorized the reason for the entry not withstanding and amounts to trespass to land. But F did something more in that he gave away all the ripe mangoes from the fallen branches to children. This is because the wall in question is part of Ds land and the pasting of the poster on the was is a direct infringement of the plaintiffs possession. a person cannot justify entering the land of another against his will for the purpose of reclaiming anything that has escaped from its enclosure (Keavry V.e. (ii) • The pasting of the poster by H on Ds wall amounts to trespass to land for which D has an action in damages.

Booker (1919). though entitled to lop the overhanging branches is guilty of conversion should he appropriate the fruit growing thereon. STRATHMORE UNIVERSITY ● REVISION KIT . a neighbour. (Mills V.Answers – Past Papers 197 boundary of the owners land.

picked up one of the wire baskets provided and filled it with groceries from the shelves. Would your advice be different if they had no child? QUESTION FIVE (a) Write short notes on the following: (i) Cover note (ii) Parties to an insurance contract. Both has lived happily with their Jon Joash until Mokua died in a tragic road accident in November 1991. Kemunto does not know her rights over the property left by her husbands. Explain what is meant by: i) Ratio decidendi ii) Obiter dicta QUESTION TWO (a) (b) Explain the ways in which arbitral tribunals may be appointed. In what circumstances may the High court set aside an arbitral award? QUESTION THREE (a) (b) What is a holder in due course and how does he differ from a holder for value? Examine the rights and duties of a holder of a bill of exchange. Kariuki entered sunset supermarket. She comes to you for advice. Mokua married Kemunto in 1970. Advice her.198 Comprehensive Mock Examinations Part III: Comprehensive Mocks Examinations QUESTIONS . Unfortunately Mokua had not made a will in respect of all his free property. As he was approaching the cashier he realized that his purse had been stolen and decided to replace the good on the shelve. The manager of the supermarket who had been observing Kariuki’s movements instructed one of his assistants to approach Kariuki and (b) LAW 1 .MOCKS COMPREHENSIVE TEST 1 QUESTION ONE (a) (b) (c) Explain the term judicial precedent What is the importance of stare decisis in the doctrine of precedent. QUESTION FOUR (a) (b) In what circumstance will a gift in contemplating of death be defeated.

Section 28 of the Accountants Act (Cap 531) identifies acts and omissions. QUESTION SIX (a) (b) How may a contract that has been validly concluded be otherwise declared unenforceable? A agreed with B that B would buy from a ten tones of sugar.Mocks 199 tell him that the goods had been sold and he could not replace them on the shelves. iii) That B was infact a minor.Questions . Discuss the legal position QUESTION SEVEN (a) (b) Explain the phrase professional misconduct. ii) That the goods were destroyed by fire a day after the contract was concluded. which constitute professional misconduct by a certified public accountant. Subsequent to the agreement. B held a gun in his hands and A could see the gun. the following facts have come to light: i) That when the agreement was being concluded. Advise Kariuki. The sugar was described to be stored in a go down in Nyeri. Enumerate the salient commissions and omissions which constitutes professional misconduct? STRATHMORE UNIVERSITY ● REVISION KIT .

QUESTION THREE (a) (b) To what extent is it true that a contract does not arise until acceptance is communicated to the offeror? What is meant by the phrase “contract uberrimae fides” and QUESTION FOUR (a) (b) Describe the rule in Rylands V. Advise P. it turns out that it emits a lot of fumes which in themselves are a nuisance to A’s neighbours. What is worse.” The car fails to move from the show room. on no condition or warranty that the car is roadworthy is given. What defences are available to it? A builds a factory for the manufacture of chemical called synoyd. S insists a legitimate deal has been concluded. QUESTION FIVE (a) (b) How may a contract be discharged by (i) Breach (ii) Frustration How are the rights of the parties adjusted following frustration of their contract? QUESTION SIX “A belated notice of an exemption clause has not legal effect on a contract” Discuss.200 Comprehensive Mock Examinations COMPREHENSIVE TEST 2 QUESTION ONE What is delegated legislation? What are the advantages disadvantages of delegated legislation as a source of law of Kenya? QUESTION TWO (a) Distinguish between a condition and a warranty in the law of contract? (b) S sells a car to P. Advise them. it has also transpired that when it rains. LAW 1 . the fumes after mixing with the rain-water produce a substance that is destroying fish in the nearby lake. Feltcher. “since the car is sold cheaply. As neighbour are unhappy and wish to sue him. After the factory is completed and becomes operation. the agreement contains the following clause.

This system of administration of justice makes case law a source of law. Case law is one of the richest areas of law. Practical: propositions of law are formulated on the basis of prevailing circumstance. For example decisions of superior courts bind subordinate courts in subsequent similar cases. Convenience: Judges in subsequent cases apply the law as formulated in previous decisions. This is because similar cases are decided alike. this introduces some flexibility into the legal system. • • • • • • • Certainty and predictability: stare decisis enhances certainty in law and predictability in the legal system. It is a principle or proposition of law based on the material facts of the case. Consistency and uniformity: stare decisis promotes consistency in decision making. thus case law is convenient in application in that judges are not obliged to formulate principles all the time. This enhances or promotes uniformity in the administration of justice. • It is the binding element in a decision or precedent. In Dodhia case Newbold observed that a system of law required a considerable degree of certainty. Flexibility: it is contented that when judges in subsequent cases attempt to distinguish earlier decisions of other judges. It is a practical approach to resolution of legal problems.Answers – Mocks 201 ANSWERS –MOCKS SUGGESTED ANSWERS TO MOCK EXAMS COMPREHENSIVE TEST 1 QUESTION ONE (a) • • • (b) Judicial precedent or stare decisis literally means decision stands. It is a system of administration of justice whereby previous decisions of courts are relied upon as law in subsequent similar cases. Rich in detail: many decision have been made. (c) (i) Ratio decidendi literally means reason for decision. Aptitude to growth: it is argued that case law grows with time in that superior courts are free to depart from previous decisions if circumstances justify. STRATHMORE UNIVERSITY ● REVISION KIT . • It disposes of the case before the court.

• Which is complete and regular on the face of it. These statements strengthen or reinforce the decision of the court. • The subject matter of the dispute is not capable of settlement by arbitration under the law. o The two arbitrators appointed by the parties have failed to appoint a third within 30 days of their appointment. QUESTION TWO (a) • • • • By the parties the dispute By a third party as agreed upon by the parties. • The arbitral award deals with a dispute not contemplated by the parties. • The award is in conflict with the public policy of Kenya. the High Court will appoint an arbitral tribunal at the instance of a party if: o The parties cannot agree who the single arbitrator shall be o Either party has failed to appoint an arbitrator within 30 days of receipt of the other parties notice to do so. By the High Court on application of either party. • The arbitration agreement is not valid under the law to which the parties have subjected it • The applicant was not given proper notice of the appointment of the arbitrator or the proceedings or was unable to present his case. • The composition of the arbitral tribunal or the procedure was not in accordance with the agreement of the parties. Under section 12 (1) of the Arbitration Act.202 Comprehensive Mock Examinations • It consists of a group of fact situations with those of the instant case as minimum. LAW 1 . (b) The High Court will set aside an arbitral award if satisfied that: • A party to the arbitration agreement was under some incapacity. They do not dispose of the case before the court and have no binding force. They may be relied upon by advocates in subsequent cases as persuasive authority. QUESTION THREE (a) Section 29 of the Bill of Exchange Act defines a holder in due course as a holder who has taken a bill. Obiter dicta literally means ‘by the way’: These are by the way statements of law or fact made by judge in the course of judgment.

or who is deemed to have provided consideration on a bill of exchange. • Kemunto is entitled to: .A life interest in the remainder of the net intestate estate. • To negotiate the bill. Duties of a Payee • If the bill is dishonoured. QUESTION FOUR (a) • • If the donors death is caused by suicide If the donor lawfully requests for its return before death.All personal and household effects of Mokua absolutely. . . it is the duty of the payee to notify the endorser.The power of appointment over the net intestate estate of mokua. • It is the duty of the payee to present the bill to the acceptor for payment. Joash hence the provisions of section 35 (1) of the Act applies. that the person who negotiated it to him had a defective title. Rights of the holder: • To sue on the bill in his own name • To hold the bill free from any defects of title of the prior parties. • If Mokua had no child. (b) • This problem is based on intestate succession as provided by the provisions of the Law of Succession Act. A holder for value on the other hand is any person who has provided. Mokua’s net intestate estate would devolve in accordance with the provisions of section 36 of the Act and Kemunto would be entitled to: STRATHMORE UNIVERSITY ● REVISION KIT . Duties of a holder • It is the duty of the drawer to present the bill to the drawee for acceptance.Answers – Mocks 203 • • • • Before it was over due Without notice that the bill has previously been dishonoured if such was the fact: In good faith and for value Without notice. it is the duty of the payee to have it noted and/or protested. • If the bill is dishonoured. • In this case it is apparent that Mokua had a child.

It may be a formal agreement or a letter from the company stating that cover has been extended. o It affords the insurers sufficient time to access the risk. • In this case Kariuki made an offer by conduct by picking the goods from the shelves. The insurer must be a body corporate licenced by the commissioner of the insurance to transact insurance business. It is generally effective for 30 days. HG Polland Ltd. It is a legally binding contract between the parties. LAW 1 . • • • b) Parties to the contract • Insurer: This is the person who promises or undertakes to pay the sum assured or its equivalent if the insured event occurs. In Juliet Praet V. The insured must have an insurable interest in the subject matter. • Insured: This is the person who takes out an insurance policy. • The shop assistant has no business questioning his conduct as his offer had not been accepted. he was at liberty to revoke the offer in the manner he purportedly did. The assured is therefore entitled to enforce the contract contained in the cover note provided he has complied with its conditions. If loss arises during the currency of the cover note the insured generally recovers as if he had a policy in force or in accordance with the terms of the cover note. (b) • This problem is based on revocation of offers. The insured may be a human being or a corporation. Issuance of a cover note may be justified on the following grounds: o It is argued that the insurance industry is formal and certain stages have to be followed before a policy is issued. QUESTION FIVE (a) Cover note is the name used to describe the temporal insurance cover extended to the proposer by the insurer during the interim period between submission of the proposal form and its formal acceptance or rejection. o It extends immediate over to the proposer. A life interest in the residue of the net intestate estate. since the offer had not been accepted by the time he realized that his wallet had been stolen. However. All the personal and household effects of Mokua absolutely. Pearson J observed that cover note “covers the assured and posts the undertakers on risk for the period while the proposal is being considered and until a policy is either granted or refused.000 out of the net intestate estate or 20% thereof whichever is greater.204 Comprehensive Mock Examinations The first Kshs 10. such as payment of the premium.

• QUESTION SIX (a) • A contract validity entered into may be rendered unenforceable by: o Illegality: if for any reason the contract becomes illegal. Any amount paid by B is recoverable. It is conduct which is inconsistent with the professional standards of the accounting profession. o Undue influence: if it is proved that one of the parties did not make an independent decision on the contract. A can therefore escape liability by establishing the circumstances in which the agreement was entered into. o Mistake: if the contract is vitiated by an operative mistake for example common. it is unenforceable. This position if consistent with the decision in Taylor V. The gun was intended to threaten A. Caldwell. This contract is voidable at as option for being vitiated by duress. This contract is void and therefore unenforceable by A or B as B had no capacity to enter into such a contract. This contract is frustrated thereby discharging A and B as none is to blame for the destruction. Having revoked the offer he is free from liability My advise is based on the decision in Dickinson V. o Enters for the purpose of or in the course of practicing as an accountant into partnership with a person who does not hold a practicing certificate or secures any professional business (b) STRATHMORE UNIVERSITY ● REVISION KIT . o Duress: if evidence suggests that the contract was procured by actual violence or threats thereof. Otherwise nothing is payable. committed or omitted by a practicing accountant in contravention of the Accountants act or any other rules or regulations made there under. A member of the institute is guilty of professional misconduct if he: o Allows any person to practice in his name of an accountant unless such person is a holder of a practicing certificate or is in partnership with or is employed by him.Answers – Mocks 205 • • My advise to Kariuki is that there is no cause for alarm as he is under no legal obligation to purchase the goods in question. mutual or unilateral o Frustration: where further performance of the obligations become impossible by reason of extraneous circumstances for which neither party is to blame. Dodds which is authoritative for the proposition that an offer is revocable at any time before it is effectively accepted. (b) (i) (ii) (iii) QUESTION SEVEN (a) This is an act or omission.

206 Comprehensive Mock Examinations through the services of such a person or by means not open to an accountant. Included in any statement returns of forms to be submitted to the council any particular knowing it to be false. Guilty of gross negligence. Advertises professional and or academic achievements. Solicits or touts for work. o o o o o o LAW 1 . Permits his name or the name of his firm to be used in connection with an estimate of earning contingent upon future transactions in a manner which may lead to the belief that he vouches for the accuracy of the forecast. Certify’s or submit in his name or in the name of his firm a report of an examination of financial statements and examination of such statement and the related records have not been made by him or a partner or an employee in his firm.

law making time not made use of by parliament is made use of by the delegates when they make law. • Speed: If law is urgently required. Ministers. By-laws are operational within the administrative area of a local authority.Answers – Mocks 207 SUGGESTED SOLUTIONS COMPREHENSIVE TEST 2 QUESTION ONE Delegated legislation is also referred to as sub-ordinate. order or proclamations. regulations.g. • Delegated legislation must be consistent with the enabling or parent Act. government ministers and statutory bodies in exercise of delegated legislative power conferred upon them by parliament through an enabling or parent Act. • It must be published in the Kenya Gazette before coming into force. • • Disadvantages • Less democratic: delegated legislation is not as democratic as statute law as it is not always made by representatives of the people. statutory boards and professional bodies makes rules. Characteristics of delegation legislation • All delegated legation is made under the express authority of an Act of parliament • It is a written source of law of Kenya. Delegates are not generally subjects are not generally subjected to rigid and binding procedures. proclamation. Delegates are free to consult experts on various issues. These are by laws. rules and regulations are made by experts in the particular field. orders. It is law making by parliament indirectly. Technicality of subject matter: By delegating legislative power. the same may be made by a Governmental Minister or Professional body delegates are responsive to urgent needs. professional bodies. indirect or subsidiary legislation. rules. made by subordinate competent bodies e. Advantages of delegated legislation • Compensation of lost parliamentary time: Since members of parliament are generally busy. regulations. STRATHMORE UNIVERSITY ● REVISION KIT . local authorities. Flexibility: It is relatively easy to make and unmake delegated legislation.

In Bettini V. (b) • • This problem is based on exemption clauses with specific reference to the concept of fundamental obligation theory. It is not part of the central theme of a contract. the innocent party is entitled to repudiate the contract and sue in damages. If broken. a singer was engaged for the whole season to perform in concerts and theatre. A condition may be express or implied. the interesting thing is that the car sold by S is incapable of self-propulsion. It was held that her promise to perform from the first night was a condition and its breach entitled the organizers to treat the contract as repudiated. A warranty may be express or implied. In Poussand V. Spiers and Pond An Actress was engaged to play a leading role in a French Opera from beginning of the season. It is apparent that the contract of sale between S and P has an exemption clause by which S is excluding himself from liability if the car turns out to be unroadworthy. It is a peripheral or collateral term. Warranty This is a term of minor stipulation of a contract. Modys (EA) Ltd. A similar holding was made in Kampala General Agency V. It was held that her promise to appear for rehearsals was collateral to the main engagement. Inadequate publicity: delegated legislation receives minimal publicity and in most cases the rules or regulations are unknown. If broken. Sub-delegation and abuse of power: delegates often sub-delegate law making power to other persons. Detail and technicality: Rules or regulations made by professional bodies or experts are often detailed and technical for the comprehension of ordinary citizens. It runs to the root of the contract and is part of the central theme of the contract. However. Owing to ill health she was unable to take up her role until a week after the season had started. The organizers were compelled to engage a substitute and declined the services of the actress and she sued. This compounds to problem of control and may lead to abuse of power by the sub-delegate.208 Comprehensive Mock Examinations • • • • Difficult to control: neither parliament nor court of law can effectively control delegated legislation. QUESTION TWO Condition This is a term of major stipulation of a contract. Gye. She additionally agreed to appear for rehearsals for six days in advance but appeared for only three days. the innocent party is entitled to sue for damages but the contract remains enforceable hence the party must perform its obligation and other shows. yet S insists that a legitimate deal has been concluded. LAW 1 .

Miles Far East Corporation Ltd. It was so held in Entores Ltd V. Carbolic Smoke Ball Co. However. • QUESTION THREE (a) • Acceptance if the external manifestation of assent by the offeree. acceptance is deemed complete when the letter of acceptance is posted. acceptance is deemed complete when the message of acceptance is received by the offeror. Although the exemption clause is an integral part of the contract. Fraser illustrate the postal rule of acceptance where the offeror impliedly authorizes the offeree to communicate acceptance by post. written or implied from conduct of the offeree. acceptance is deemed complete when the offeror hears the word of acceptance from the offeree. It was so held in Byrne V. Once an offer is accepted an agreement arises between the parties. It is generally true to say that a contract cannot arise until acceptance is communicated to the offeror. acceptance is deemed complete when the offeror hears the words of acceptance. Where no method of communication is prescribed the method applicable depends on the type of offer and the circumstances in which the offer is made. It was so held in Entores Ltd V. o Where acceptance is by conduct as was the case in Carlills case. Bindley. My advice to P is to institute proceedings against S in damages for breach of contract. It was held that the plaintiff could not rely on the exemption clause to escape liability. The decision in Henthorn V. Van Tienhoven. it cannot be given effect by a court of law as doing so enables S to evade the fundamental obligation of the contract. As was the case in Carlill V. Where parties negotiate by word of mouth in each others presence. Miles Far East Corporation Ltd. o Where such communication is expressly or impliedly walved by the offeror. a contract could arise without any communication of acceptance by the offeree. • • • • • • • STRATHMORE UNIVERSITY ● REVISION KIT . Wallis whose facts were substantially similar.Answers – Mocks 209 • It is evident that S has committed a fundamental breach of contract and hence cannot rely on the exemption clause to escape liability. silence does not amount to acceptance as was held in Felthouse V. Where parties negotiate by telex. Where parties negotiate by telephone. My advise is based on the decision in Karsales (Harrow) Ltd V. As a general rule. Acceptance of an offer may be oral. whether it reaches it destination or not. Miles Far East Corporation Ltd. Ltd. for example. Where the offeror expressly or impliedly authorizes the offeree to communicate acceptance by post. It was so held in Entores Ltd V.

The rule was enunciated in Rylands V. • Plaintiffs benefit/consent: if the plaintiff consented to the bringing of the thing or benefits from it. • My advise to A’s neighbours is to instigate the arrest of A for prosecution by the state for the public nuisance. Could have recognized it was a possibility. • In addition. • It is apparent that the fumes emitted by A’s factory amounts to public nuisance which is actionable as a crime and as a tort. an action against the defendant for its escape is unsustainable.210 Comprehensive Mock Examinations (b) • • • • Contract Uberrimae fides literally means contract of the utmost good faith. This is the rule of strict liability or liability without fault. QUESTION FOUR (a) • • • This rule is to the effect that a person who for his own purpose brings and keep things capable of causing mischief is they escape is prima facie answerable for all the damage which is the natural consequence of their escape. he had engaged. (b) • This problem is based on the tort of nuisance. Defences to the rule: • Contributory negligence: this defence can only be relied upon if the plaintiff contributed to the escape. if any of A’s neighbour is suffering particular or specific loss from the nuisance such a person has a personal action against A for the loss for example if one of A’s neighbours is a fish trader such a person can sue A for an injunction. Falure to disclose a material fact renders the contract voidable at the option of the innocent party. • Act of God: this is a defence where the escape is wholly attributable to natural causes without human intervention and no human foresight. These are contracts excepting the common law principles of caveat emptor. Both parties are legally bound to disclose material facts about the transaction. Fletcher where an employer was held liable for the negligence of an independent contractor. LAW 1 . Examples include: o Contract of insurance o Partnership agreement. • Statutory authority: the defendant has a complete defence if the accumulation is authorized by an act of parliament and he acted in accordance with the provisions of the Act. • Acts of a stranger: this defence is available if the escape is occasioned by the unforeseen acts of a third party.

This common law doctrine is an exception to the doctrine of absolute contractual obligations. It only gives the innocent party an opportunity either to treat the contract as repudiated or as existing. Henry.Answers – Mocks 211 QUESTION FIVE (a) (i) • • • Breaching a contract by a party does not discharge it at all. Caldwell. o Government or state intervention: if state policies. the basis of the contract is destroyed without the fault of either party. Breach of contract may be anticipatory or actual Anticipatory breach takes place if a party to a contract expressly or impliedly intimates to the other in advance its intention not to perform at the due date in which case the innocent party may. acts or proclamations render the performance of a contract STRATHMORE UNIVERSITY ● REVISION KIT • • • • (ii) • • • . it must be evident that the event or state of affairs was the sole foundation of the contract. Spiers and Pond. if the event or state of affairs fall to materialize. o Death or permanent incapacitation: a contract of personal service or employment for example employment is frustrated if the person dies or becomes permanently incapacitated. However. A party can only treat a contract as repudiated if the breach is fundamental as was the case in Poussard V. Actual breach takes place if the party fails to perform or tender an unsatisfactory performance. As was the case in Krell V. If the innocent party treats the contract as repudiated the contract is terminated and the party is not bound to perform its part. As was the case in Taylor V. A contract may be discharged by frustration in the following circumstances: o Destruction of subject matter: a contract is frustrated if the subject matter. sue in damages for the breach or wait for the date of performance or sue for the decree of specific performance. it is bound to honour its part of the contract but has an action in damages. o Illegality: if performance of contractual obligations becomes illegal by reason of change of law the contract is frustrated and the parties discharged as there is no obligation to perform what has become illegal. If the innocent party treats the contract as existing. o Non-occurrence of event: a contract based on a particular event or state of affairs obtaining at a particular time may be frustrated. A contract is frustrated when performance of the obligations becomes impossible by reason of unforeseen or extraneous circumstances for which neither party is to blame.

It must be satisfied that the party affected by the clause was aware of its existence when the contract was entered into. he was not aware of the exemption clause and hence the defendant could not rely on it. Such a clause is not deemed to be a term of the contract. As was the case in Metropolitan Water Board V. Malborough Court Ltd the exemption clause was brought to the notice of the plaintiffs after the contract has been concluded. 1943. where the exemption clause near the Hotels swimming pool had not been brought to the plaintiffs notice. it is frustrated and the parties discharged. It was held that the defendant could not rely on the clause to escape liability. In such a case the contract is frustrated. the court may order such party to pay to the other a sum of money which must be less than the benefit so derived. Kenya Safari Lodges and Hotels Ltd. In Dodd V. Exemption clauses are common in the so-called standard form contracts for example hire purchase agreement. For a court of law to consider the effect of an exemption clause it must be satisfied that it was an integral part of the contract. when a contract is frustrated the rights of parties are adjusted as follows: The contract is terminated Any money paid is recoverable Money paid ceases to be payable If a party has suffered loss as a result of performance. • • • • LAW 1 . Dick Kerr & Co. the court may order the other party to pay a sum of money for the loss. o Supervening events: these are events which delay performance and thereby change the commercial characteristics of the contract. Nanda it was held that although the plaintiff had been to the defendants garage before. Such a clause is not deemed to be an integral part of the contract. (b) • • • • • Under the provisions of the Law Reform (Frustrated Contracts) Act. We agree with the assertion that a belated notice of an exemption clause has no effect on the contract. QUESTION SIX • • • An exemption or exclusion clause is a inserted in a contract by the stronger party exempting itself from liability or limiting extent of any liability arising under the contract. An exemption clause may be made an integral part of the contract by notice or signature. In Olley V. If a party has derived a benefit other than financial.212 Comprehensive Mock Examinations impossible. A similar holding was made in Lougher V.

Harman posted a letter accepting the offer.000. (b) Outline the various ways in which the independence of the judiciary may be achieved and maintained in a country. (c) What is the significance of rule of law in a country? QUESTION FIVE (a) “For an agreement to be legally binding offer and acceptance must be communicated”. the letter never reached Dick. It has become apparent that Tom is not willing to sell the car for Sh. 450. (i) Dick posted a letter offering to sell goods to Harman on certain terms.000. 450.000.(a) With the aid of decided cases explain the salient rules of consideration (b) Distinguish between bilateral and unilateral discharge of contract. However. State and briefly explain the exceptions to this rule. (ii) Tom wrote to Jerry offering to sell his car to him at 500. Public Bill Private Bill (b) STRATHMORE UNIVERSITY ● REVISION KIT . QUESTION FOUR (a) Discuss the doctrine of separation of powers highlighting its importance. Explain whether there is a binding agreement in each of the cases below. Upon receipt of the letter.Questions 213 Part IV: Revision Questions and Answers Questions REVISION PAPER 1 QUESTION ONE Write explanatory notes on: a) Option (d) b) Government Bill (e) c) Private members bill QUESTION TWO “The office of the chief justice is a critical office in the judiciary of a country” Discuss QUESTION THREE . Jerry accepted Tom’s offer subject to the price being reduced to Sh.

Mpenda Raha hired a room in a hotel from where he would have an advantage view of the Queen’s procession. QUESTION SEVEN (a) (b) Distinguish between a cheque and a bill of exchange. Mpenda Raha traveled to London to watch the Golden Jubilee celebration of the Queen’s ascension to the throne.000. Examine the salient obligations of the banker and customer in a banker and customer relationship. Mpenda Rah is seeking for refund of his money which he had paid to the hotel. LAW 1 . Mpenda Raha could not view the procession due to crowds which obstructed his view of the Queen’s procession. On the appointed day. QUESTION EIGHT (a) (b) Distinguish between testate and intestate succession. State the main provisions that govern intestate succession under the Law of Succession Act. QUESTION SIX (a) (b) How may a will be revoked. cap 160. 500. explain whether Mpenda Raha will be successful in getting a refund of the money paid to the hotel.214 Questions and Answers Revision Jerry now writes to Tom agreeing to buy the car for Kshs. Citing relevant legal principles.

What advice would you give him? QUESTION FOUR a) In relation to the law of tort.Questions 215 REVISION PAPER 2 QUESTION ONE (a) i) ii) (b) Distinguish between:Law and morality National and international law. (i) (ii) Mrembo visited Beutex shop to buy cosmetics. QUESTION THREE a) Attempt a classification of cheques b) Mutiso owned a bakery in Kangundo Town. Administrative tribunals have been held to be alternatives to the courts of law in the dispensation of justice. Five years later Msafiri brings action against owners of the vehicle for recovery of damages. Msafiri boarded a public service vehicle as a paying passenger. What are the functions of law in society? QUESTION TWO. she slid and broke her leg. explain what constitutes the tort of negligence. In light of the above statement: i) What do you understand by administrative tribunals? ii) Explain four advantages of administrative tribunals over courts of law. A worn out tyre of the bus burst and Msafiri was injured. as part of the sale. He went to hospital where he was treated and discharged. QUESTION FIVE (a) Courts of law are not the only means by which disputes may be resolved. b) Judges. He agreed. STRATHMORE UNIVERSITY ● REVISION KIT . He sold it last year to Munyao. He has now decided to open a bakery in Machakos Town and seeks your advice as to whether he can legally do so. Write brief notes on: a) Judicial service commission. b) Identify the tort that may have been committed in the instances listed below and explain the possible defenses available to the defendant. Owing to the slippery nature of the floor. not to carry on a bakery business for a period of 3 years within 200 miles radius of the bakery he had sold.

Onyango wants to know his rights. QUESTION SEVEN (a) Examine the circumstances in which a banker has no authority to honour a cheque drawn on him. his secretary. Advice onyango. State the circumstances in which the guarantor will be discharged. The Nairobi Harambee secondary school cashed the cheque in good faith. Outline the salient remedies of the buyer in a sale of goods contract. Atieno filled in a large amount made the cheque payble to Nairobi Harambee Secondary School and gave it to her brother to take it to the school in order to pay the outstanding school fees. (b) Onyango signed a cheque and crossed it “not negotiable. if any. against the school. LAW 1 . to fill in a certain amount and to X’s name as payee.” He told Atieno.216 Questions and Answers (b) Revision Explain the differences between the burden of proof in civil cases and the burden of proof in criminal cases. QUESTION EIGHT (a) (b) Distinguish between a contract guarantee and a contract of indemnity. QUESTION SIX (a) (b) Explain how an unpaid seller may loose the right of lien and stoppage in transitu.

but the STRATHMORE UNIVERSITY ● REVISION KIT . an accountant of Speed Company Ltd. (c) Distinguish between principal and subsidiary sources of law. in response to an inquiry by Onyango regarding the possible sale of his (Shah’s) car. highlighting the significance of each type. 2000. Advise Onyango.Questions 217 REVISION PAPER 3 QUESTION ONE (a) What to you understand by the phrase “Source of law”? (b) Identify the various sources of law of Kenya. Hesabu. QUESTION FOUR In relation to partnership law write explanatory notes on the following: (i) Expulsion of a partner (ii) Incapacities of an assignee Partner (iii) Admission of a new partner (iv) Circumstances in which a court may order the dissolution of a partnership. prepared a bearer cheque for Haraka’s signature who was the duly authorized signatory. QUESTION SIX Discuss the contractual capacity of: (a) Persons of unsound mind (b) Undischarged bankrupts (c) Corporations QUESTION SEVEN (a) (b) (c) Define the term “a cheque” Explain the type of crossing that may be made on a cheque. wrote to Onyango stating. Shah is now threatening to sue Onyango for breach of contract. QUESTION THREE (a) In what circumstance will a contract be vitiated by common mistake? (b) Shah. “Onyango considered the price to be too high and decided to look for another car but forgot to reply to Shah’s letter. “I have decided to sell to you my car for $5. The amount appeared in figures as Sh. If I hear nothing from you before next Sunday. QUESTION FIVE Discuss the statutory Provisions governing occupiers liability in Kenya. I will take it that you have accepted.000. QUESTION TWO Write (a) (b) (c) brief notes on: Islamic law Hindu law Types of jurisdiction.

2. Haraka signed a cheque. 20. 20. Hesabu then altered the amount to read Sh.218 Questions and Answers Revision amount was not written in words. QUESTION EIGHT (a) (b) How are arbitrators appointed In what circumstances may a party challenge an arbitral award in the High Court? LAW 1 . withdrew Shs.000. Speed Company Ltd has ascertained the true position and is insisting that the bank credit its account with the sum of Kshs. Advise the bank. 2000 to Haraka but pocketed the 18.000 being the difference between Sh. 18.000.000 from the company’s account. Hesabu handed over Sh.000 and he indicated the amount in words.000 and Sh. 20.

N Motors Ltd. Examine the extent to which an employer is liable for the torts committed by an independent contractor.” When the car was delivered to K.Questions 219 REVISION PAPER 4 QUESTION ONE (a) (b) How is the supremacy of the constitution as a source of law manifested? What were the weaknesses of the common law? QUESTION TWO Write explanatory notes on (a) duties or obligations of an advocate (b) law society of Kenya QUESTION THREE (a) (b) Discuss the rules that affect the effectiveness of exemption clauses. G. the individual QUESTION FIVE (a) (b) Explain the principle of vicarious liability. He selected a new and nice looking car and was informed by G. Kemei signed a sale agreement with the motor company which partly read “…. he discovered to his surprise that it was a second hand car of the same make as the car he had selected but with several major mechanical defects. Kemei want to buy a new car for G. Advise Kemei. Goods once sold cannot be returne. QUESTION FOUR (a) What is meant by the phrase “fundamental rights and freedoms of the individual. Motors Ltd that the car was new and free from any defects K. K. Kemei after paying for it.. N.” (b) Outline three rights and three freedoms of guaranteed by the constitution of your country. STRATHMORE UNIVERSITY ● REVISION KIT . Kemei under any circumstances.no condition or warranty that the vehicle is road worthy or as to its age or fitness for any purpose is given or implied by the seller. N Motors Ltd. insists that he sale was validly concluded and that they cannot be liable to K.

Atieno is aggrieved by this action and seeks your legal advice. Nafula’s employee collected stinking rubbish from a compost heap in Nafula’s compound and threw it into Atieno’s compound. QUESTION SIX “Payment of a lesser sum of the day is satisfaction of a large sum is not sufficient consideration for the creditor’s promise to accept such payment in full settlement of the debt. QUESTION EIGHT (a) (b) Identify and explain the various types of corporations.” Discuss.220 Questions and Answers (c) Revision Atieno and Nafula are neighbours in Kijiji Bandi village. Last year. What is a lien? Explain the various types of lien. Advice as to her legal rights and course of action to take. Discuss the consequences of incorporation. Atieno quarreled with Natula’s employee. LAW 1 . QUESTION SEVEN (a) (b) List and explain the general duties of a bailee and the bailor in a contract of bailment.

What are the advantages from a legal point of view of converting an unincorporated association to a corporation? b.Questions 221 REVISION PAPER 5 QUESTION ONE “Both parliament and courts of law have in various ways attempted to control delegated legislation however. QUESTION SEVEN a. QUESTION THREE State and explain the various types of offers QUESTION FOUR In relation to partnership law: discuss (a) Registration of a limited partnership (b) Incapacities of a limited partner QUESTION FIVE (a) (b) Why is it important to determine when property in goods passes from seller to buyer? What are the rules that govern the passing of property? QUESTION SIX Discuss the liability of parties to a bill of exchange. STRATHMORE UNIVERSITY ● REVISION KIT . Discuss the doctrine of ultra vires in relation to companies. neither organ can effectively do so by reason of inherent and operational weaknesses” Discuss” QUESTION TWO Write briefly on: (a) Court Martial (b) Industrial Court.

g. amend or repeal laws applicable in some parts of Kenya only or laws which regulate specific groups of persons. 1968. (a) (b) (c) This is a Bill mooted by a member of parliament in his capacity as such which he introduces to the National Assembly for purposes of being enacted law e. once appointed he becomes a judge of the High court and Court of Appeal. QUESTION TWO The office of the chief justice is established by the Constitution. However. • The offeror cannot revoke the offer before such duration expires. This is a Bill which seeks to introduce. It may be government or private members Bill. Under the provisions of the constitution. the chief justice is the most senior judge.222 Questions and Answers Revision Answers REVISION PAPER 1 QUESTION ONE (a) Option: this is the consideration provided by the offeree for the offeror to keep his offer open for a specified duration. The occupant of the office is appointed by the president. (b) This is a Bill mooted by the government which it introduces to the National Assembly for purposes of being enacted to law. The importance of the office may be exemplified by a discussion of its function: Administrative function • The chief justice is the chairman of the Judicial Service Commission • He is the principal administrative officer of the judiciary. It can also be defined as an agreement between the offeror and the offeree by which the offeror agrees to keep his offer open for a specified duration. Such Bills are drafted by the Attorney General. It is a constitutional office and therefore one of the important offices in a country. This is a Bill which seeks to introduce. The Constitution does not expressly prescribe the qualification for the holder of the office. the Hire Purchase Bill. • Determines where the High court sits • Overseas administration of courts • He is responsible for the efficiency delivery of judicial services • He appoints the duty judge LAW 1 . It may be a government or private members Bill. amend or repeal laws applicable throughout Kenya.

Judicial function • As a judge of the High court and Court of Appeal he participates in the adjudicatory process. Kadhis Court Act and the Magistrate Court Act. and illustrated by Thomas V. • Under the Judicature Act. STRATHMORE UNIVERSITY ● REVISION KIT . Provided a tribunal appointed by the president has investigated the allegations and recommended that he be removed. • Under section 84 of the Constitution. This is effected by a notice in the Kenya Gazette. The chief justice retires at the age of 74 and enjoys some security of tenure. or • Inability to discharge functions of his office. QUESTION THREE (a) • Mutual love and affection is not sufficient consideration: it was so held in Bret V. Legal education and profession • The chief justice or his nominee is the chairman of the Council of Legal Education • He admits advocates to the bar • He issues practicing certificates to advocates • He appoints commissioner for oath and notaries public. J. • Misbehaviour. Our discussion clearly demonstrates that the office of the Chief Justice is an important one. Enhancement of jurisdiction Under the provision of the Magistrates Court Act. Legislative function • The chief justice is empowered to make law by various statutes. he is empowered to make law to facilitate the enforcement of fundamental rights and freedoms of the individual. • He represents the judiciary in all state functions. the chief justice is empowered to increase the civil jurisdiction of the Resident Magistrates Court. he is empowered to make law to regulate the practice and procedure of courts. He can only be removed from office on the ground of either. Political function • He administers oath to the person elected to the office of the president. S. Thomas.Answers 223 • He makes judges available for various duties.

Consideration must not be past: as a general rule past consideration is not sufficient to support a contractual claim. Ponsonby. doing some more amounts to consideration. This is the doctrine of privity of contract as exemplified by the decision in Dunlop V. doing something more amounts to consideration as was the case in Hartley V. the obligations are said to be executory and the discharge is bilateral i. if neither party has performed its part of the contract. each party discharges the other from performance. Consideration must flow from the promisee: the person to whom the promise is made provides consideration and by so doing becomes party to the contract.224 Questions and Answers Revision • • • • • • Consideration must be legal: the act of promise offered by the promise must be lawful. Consideration must be something in excess of a public duty: put in the alternative performance by the plaintiff of a public duty imposed upon him by law is not sufficient consideration for a promise. past consideration is sufficient to support a contractual claim. The decision in Stilk V. As was the case in Collins V. QUESTION FOUR The so-called doctrine of separation of powers is a framework propounded by a French jurist named Montesquieu who sought to create a legal LAW 1 . Myrik is illustrative of this position. It must be sufficient. In Thomas V. Unilateral discharge: this is the discharge of a contract by agreement where either party has performed fully or partially. However. However. as there is no mutuality. Consideration must be something in excess of an existing contractual obligation: performance of an existing contractual obligation is not sufficient consideration for a promise. Consideration must be something of value in the eye of the law: this rule means that consideration must be real though it need not be adequate. the doctrine of privity of contract has many exceptions. The decisions in reMcArdles Case and Roscorla V. Selfridge and Tweddle V. (b) • • Bilateral discharge: this is one of the approaches to the discharge of contract by agreement. It is to the effect that. Atkinson. However. As was the case in England V. Davidson. Illegal consideration invalidates the contract. the one pound Mrs. The party that has performed discharges the other hence the discharge is unilateral. Godefroy. Thomas to remain in her late husbands house was sufficient consideration.e. Thomas. Thomas are illustrative of this position. in certain circumstances. However. A unilateral discharge may take the form of contract under seal. novation or accord and satisfaction.

• It is based on the assumption that governmental organs can operate in water tight compartments. (b) • The concept of independence of judiciary has its origins in the doctrine of separation of powers. • The appointment of judges should be strictly on merit. • Judicial staff should have their own code of service. The rule of law envisions a situation where the government acts within the confines of the law and that the law remains supreme. • His framework envisions a constitutional structure characterized by non sharing of responsibility. • Terms and conditions of service should be commensurate with their responsibility. • Judicial officers should enjoy immunity from actions arising in the course of discharging their duties. That these organs exercise different functions and that no person should be a member of more than one organ. law should manifest the will of the people. personal integrity and commitment to the rule of law.Answers 225 framework to avoid the over-concentration of political power in the hands of one person or group. (c) • The rule of law is a constitutional principle which implies a system of governance that is founded on legal rules. The basic idea behind this rule is that the government should be operating according to the laws of the land. The famous articulation of Montesquieu that “There is no liberty yet if the power of judge” bear this testimony. • • • QUESTION FIVE STRATHMORE UNIVERSITY ● REVISION KIT . terms and conditions of service. • Independence of the judiciary may be achieved by inter alia vesting judicial authority in the judiciary. • Judicial officers should enjoy security of tenure of office. In the first instance courts should be free from interference or control from any quarter. The principle is based on the premise that all are equal before the law. It postulates that. • This is the so-called classical doctrine of separation of powers which is for all intents and purposes impractical unless modified. and all must obey the law. • Montesquieu’s thesis was that governmental powers should be devolved to different organs namely Judiciary Executive and Legislature. • According to him such dispersal of powers creates a system of checks and balances. professionalism. • A judicial authority should be the employer of all judicial personnel.

• In this case. 500. • In this case it is apparent that Dick impliedly authorized Harman to communicate acceptance by post and Harman posted his letter of acceptance though it never reached Dick. in certain circumstances acceptance need not be communicated for an agreement to arise between the parties. • However. Our position is consistent with the decision in Byrne V. • Secondly. Jerry’s counter offer of Kshs. acceptance is deemed complete when the letter is posted whether it reaches its destination or not. • This position is consistent with the decision in Hyde V.g public transport. • Jerrys willingness to pay Kshs. (b) (i) • This problem is based on the postal rule of acceptance of offers. Van Tienhoven. It was so held in Felthouse V.226 Questions and Answers Revision Acceptance is the external manifestation of assent by the offeree. Wrench whose facts were substantially similar. Destruction: a will is revocable by burning. • An offer need not be communicated if it is by conduct e. Carbolic Smoke Ball Co. (1893). tearing or otherwise destroying it with an intention to revoke it. As was the case in Carlill V. Silence does not as a general rule amount to acceptance. By accepting an offer the offeree creates an agreement between the parties. (a) • • Another will or codicil: such will or codicil must manifest an intention to revoke the earlier will. As was the case in Carlill V.000 terminated Toms offer of Kshs. 450. Carlill was not bound to communicate the purchase and consumption of the smoke balls. 500. LAW 1 . • As a general rule acceptance must be communicated to the offeror. QUESTION SIX.000. Ltd.000 for the car is not an acceptance as there was no offer existing at the time as there is no evidence that Tom had revived the offer. For example if the offeror expressly or impliedly waives the communication. Bindley. Where Mrs. This is because at common law if the offeror expressly or impliedly authorizes the offeree to communicate acceptance by post. • It is obvious that there is a binding agreement between Dick and Harman. Carbolic Smoke Ball Co. where acceptance is by conduct. (ii) • This problem is based on counter offers in the law of contract. it is evident that Jerry did not accept Toms offer and as such there is no contract between them.

Mpenda Rahas rights have not been violated. It is standard of care is that of a reasonably competent banker. Is not discharged presentation. the marriage of the testator revokes the will unless the will is made with contemplation of a marriage with a specific person. Cannot be crossed. • May be noted and/or protested. • The contract is not frustrated and he cannot seek a refund of the amount paid. • Confidentiality: must not disclose his dealings with the customer to third parties. Notice of dishonour need not be given. • In this case it is apparent that Mpenda Raha had hired a room in a hotel to enable him view the Queens procession but could not do so due to the huge crowds. QUESTION SEVEN (a) Bill of exchange • Can be drawn on any person including a banker. • Is discharged if not presented. (b) • This problem is based on frustration of contract. May be discounted.Answers 227 • Marriage: under sec 19 of the Act. there are certain exceptions to this duty. • It is payable on demand. May be crossed. • It is obvious that Mpenda has no one else to blame but himself. However. Cannot be protested. • Notice of dishonour must be given. noted by nonand/or • • • • • Is payable on demand or at a fixed or determinable future • time. (b) Duties of the banker • Reasonable care: must take reasonable care in his dealings with the customer. • Professional advise: a banker is bound to provide professional advise to the customer if called upon to do so. • Cheque • Can only be drawn on a banker. STRATHMORE UNIVERSITY ● REVISION KIT . • Honour cheques: must pay all cheques drawn by the customer provided all other conditions are met. • This was a contract based on the happening of a particular event which took place as scheduled.

Any delay may be amount to estoppel. • A life interest in the residue of the net intestate estate. where the intestate is survived by a spouse and a child or children the surviving spouse is entitled to: • Personal and household effects of the deceased absolutely. (ii) Spouse but no children: under section 36 of the Act where the intestate is survived by a spouse but no child or children the surviving spouse is entitled to: • Personal and households effects or the deceased absolutely • First Kshs. a person is deemed to intestate in a respect of all his free property of which he has not made a will capable of taking effect. (b) (i) Spouse and child or children: under section 35 (1) of the Act. If the spouse takes too long or exercises the power unfairly any child may apply to the court to compel the spouse to exercise the power for a variation. Testate succession: this is the disposition of a deceased’s estate in accordance with his will as approved by the court. the minister may by a notice in the Kenya Gazette disqualify the rules of intestacy in the distribution of agricultural land.228 Questions and Answers Revision • Duty not to pay without authority: a banker must not pay out monies out of the customers account without his express or implied authority. The surviving spouse must exercise the power fairly and without undue delay. In such a case the net intestate estate is distributed in accordance with the rules of intestacy. 10. LAW 1 . • Power of appointment: this is the power of a person to distribute another’s property. In such a case. under section 32. Duties of the customer: • Duty of care: a customer is bound to exercise care when drawing cheques to avoid alteration. crops and livestock in any part of Kenya. the law applicable in the distribution of such property is the law or custom of the community or tribe in question. QUESTION EIGHT (a) Under section 34 of the law of succession Act. • Notice of irregulaties: must notify the banker of any irregularities affecting his account. This life interest terminates upon the remarriage of a spouse if she is a widow. However.000 out of the net intestate estate or 20% thereof whichever is greater.

if the intestate was polygamously married. Child (ren) but no spouse: where the intestate is survived by a child or children but no spouse. The life interest terminates upon the remarriage of the spouse if she is a widow. the net intestate estate devolves upon the child or the children and is held in trust for it or for them in equal shares until they attain the age of majority. No spouse or children: under section 39 of the Act. • The closest relative upto and including the 6th degree of consanguinity is equal shares. if the intestate is survived by neither spouse. Polygamously married – under section 40 (1) of the Act. the net intestate estate devolves upon the relatives in the following order of priority: • Father. if dead • Brothers and sisters and any children of deceased brothers and sisters in equal shares.Answers 229 • (iii) Life interest in the remainder. if none. nor child or children. (iv) (v) STRATHMORE UNIVERSITY ● REVISION KIT . and if none. • It devolves upon the state and is paid into the consolidated fund. • Half brothers and half sisters and any children of deceased half brothers and sisters in equal shares and if none. if dead • Mother. the net intestate estate devolves upon all the houses and is divided between them on the basis of the number of children and adding one unit in the case of a surviving spouse.

Promotes good governance by limiting powers of government. It emanates from parliament as well as customary and religious practices. Promotes peaceful co-existence or prevents anarchy. Facilitates and effectuates private choice. Morality on the other hand is a sense of judgement between right and wrong by reference to certain standards developed by society over time.g. Morality is not enforceable. LAW 1 . The society imposes sanctions. which regulates the relation between the states or countries and other international persons e. • Chairman of the public service commission. (ii) National law: this is municipal or state law. It consists of prescriptions of society. Acts as standard setting and control mechanism for speech manufacturing contruction etc. • Attorney General • Two persons who are for the time being judges of the High court and Court of Appeal appointed by the president. It consists of all rules of law operational within the boundaries of a given country. International law is based on international agreements or conventions or treaties and customary practices of states. Rules of law are enforceable or binding i. It regulates the relations between the state and its citizens and the citizens inter se. QUESTION TWO (a) Establishment: it is established by section 68 (1) of the Constitution. Resolving social conflict.e. demand compliance failing which there is a sanction. (b) • • • • • • Facilitates administration of justice. United Nations.230 Questions and Answers REVISION PAPER 2 QUESTION ONE Revision (a) (i) Law may be described as an aggregate or conglomeration of rules or principles enforced by courts of law at a given time. • Registrar of the High court as secretary. Membership • Chief justice. Rules of law are certain and emanate from customary and religious practices. International law: This is a body of rules.

• Appointment: it appoints and promotes magistrates. • Is or have been a judge of a court with unlimited jurisdiction in criminal and civil matters in some part of common wealth or republic of Ireland. QUESTION THREE • • A cheque is a bill of exchange. Cheques may be classified as: STRATHMORE UNIVERSITY ● REVISION KIT . (b) Under the constitution of Kenya. drawn on a banker payable on demand. • Under section 63 of the Constitution upon appointment a judge must take and subscribe to the oath of allegiance and such other oath as prescribed by parliament. Kadhis. Otherwise judges retire at the age of 74. Qualification: To qualify for appointment one must either: • Be an advocate of the High court of the not less than 7 years standing. • Discipline: it is responsible for disciplining magistrates Kadhis. A judge can only be removed from office on the ground of either. o Misbehaviour or o Inability to discharge the functions of his office. a judge may be puisne or judge of appeal. • Judges enjoy some security of office.Answers 231 Powers of the commission • To make rules to regulate its procedure. provided a tribunal appointed by the president has investigated the allegations as a matter of fact and recommended that the judge be removed. • Is or has been a judge of a court with jurisdiction to hear appeals from a court with unlimited jurisdiction in criminal and civil matters in some parts of common wealth or republic of Ireland. • Administration: it is the principal administrative organ of the judiciary. It administers the judicial department. High Court Registrars and other officers in the Judiciary. Appointment All judges are appointed by the president acting in accordance with the advice of the Judicial Service Commission. Registrars and other employees of the Judiciary. Duties or functions: • Advisory role: it advises the president on the appointment of judges of the High Court and Court of Appeal. • To act independently • To delegate its functions to a judge of the High court. • To confer powers and impose duties on public officers with consent of the president. • To act not withstanding a vacancy in its membership but decision must be supported by the majority.

232 Questions and Answers o o Bear and order Open and crossed Revision o Bearer: this is a cheque payable to the holder. General crossing Special crossing (b) • This problem is based on contracts in restraint of trade. LAW 1 . o Order: this is a cheque payable to the order of a specified person. o Crossed: this is a cheque which contains two parallel transverse lines on its face. • The legal issue is whether Mutiso can open a similar business in Machakos town which is less than 100 miles from Kangundo. A cheque may be crossed generally or specially. • It is evident that Mutiso covenanted not to set up a similar business within a radius of 200 miles from Munyao’s business for 3 years. Mutiso is bound by the contract with Munyao and cannot legally open the bakery. o Open: this is a cheque whose proceeds are payable to the payee across the counter. • As matters stand.

• Beutex shop owed all its visitors a common duty of care.” It is the doing of what a reasonable man would not have done in the circumstances or not doing what he would have done. QUESTION FOUR (a) In the words of Anderson B. Cap 22. • The bus company owed Msafiri a legal duty of care but due to a breach of that duty i. the failure to maintain the bus. QUESTION FIVE STRATHMORE UNIVERSITY ● REVISION KIT . I will advise him to apply to the High court for the contract to be declared void pursuant to section 2 of the Contracts in Restraint of Trade Act.e: • Legal duty of care • Breach of duty • Loss or damage.Answers 233 • • However because this restraint is too unfair to Mutiso. or doing something which a prudent and reasonable man would not do. (b) (i) • This problem is based on occupiers liability. (ii) • This problem is based on the tort of negligence. My advise is based on the above statute as the restraint is unreasonable. the plaintiff must establish the elements of the tort i. would do. in Blyth V. guided upon those consideration which ordinarily regulate the conduct of human affairs. • The owners of Beutex may argue that they had displayed a warning sign informing visitors not to use the wet floor but Mrembo ignored the same. It confers upon Munyao more protection than is reasonably necessary. In order to succeed in an action based on negligence. negligence is the “omission to do something which a reasonable man. Msafiri was injured. Birmingham Water Works Co. • Msafiri has no enforceable action against the bus company as it is statute barred.e. she has a claim in damages against the owners of the shop. • From the date of the accident Msafiri has a cause of action against the bus company but did not do so until after five years. actions based on the tort of negligence become statute barred after three years. • The shop owed Mrembo this duty but now that she was injured there in. • Under the provisions of the Limitation of Actions Act. These are the elements of the tort of negligence.

QUESTION SIX (a) • By waiver thereof LAW 1 . There is a saving on cost. preponderance of probabilities. plaintiff. Speed: tribunals are faster in dispute resolution since their diaries are not clogged. The prosecution is bound to adduce The plaintiff must adduce evidence evidence to prove its case against to prove his allegations against the the accused.234 Questions and Answers (a) (i) • • • • • (ii) Revision • • • • • • Administrative tribunals are bodies created by statute to determine certain types of disputes. Their decisions are more balanced. Co-operative societies tribunal. A decision of the tribunal may be appealed against or be challenged in the High court. The standard of proof is very high The standard of proof is on a as it is beyond any reasonable balance of probabilities or doubt. University senate. Policy and other matter: Tribunals take into consideration policy and other matters which courts do not refer to. charged. Cheap: it is relatively cheaper to see a dispute through a tribunal. Capital Markets Tribunal. These tribunals are guided by the principles of natural justice. These tribunals exercise quasi judicial functions. The court must be satisfied beyond It must be more probable than any reasonable doubt that the improbable that the plaintiffs accused committed the crime as allegations are true. They are more accessible. Informality: tribunals are generally free from technicalities which characterize ordinary courts. defendant. (b) Criminal cases Civil cases The burden of proof is borne by the The burden of proof is borne by the prosecution. Expert knowledge and specialization: tribunals are better placed to promote expertise as they deal with specific disputes. They supplement ordinary courts in the administration of justice. Examples include Insurance Appeals Tribunal.

Payment of the price.Answers 235 • • • • • • Delivery of the goods to a common carrier for transmission to the buyer without reserving the right of disposal. • Notice of customers death • Notice of bankruptcy petition against the customer • Notice of drawers’ insanity • A garnishee order: • Insufficient funds. If the buyer or his agent obtain delivery of the goods. QUESTION SEVEN (a) The authority of a banker to pay a cheque drawn on him by a customer is determined in the following ways: • Countermand of payment: where a customer gives instruction to the banker not to honour a cheque. If on arrival. • Rejection of goods: under the provisions of the Sale of Goods Act. • Holders’ defective title: the holder has obtained a cheque through fraud or theft. • Recovery of price: if the buyer has already paid for the goods but the same are unavailable he is entitled to recover the price as consideration for the payment has totally failed. • Specific performance: if the seller wrongfully neglects or refuses to deliver specific goods. for example if the quantity delivered is more or less. the carrier notifies the buyer or his agent that he holds the goods on his behalf. (b) Remedies of the buyer include: • Damages for non-delivery: if the seller wrongfully neglects or refuses to deliver the goods as agreed the buyer may maintain an action against him in damages for non-delivery. the buyer is entitled to reject goods in certain circumstances without incurring any liability. • Damages for breach of warranty: if the buyer elects or is compelled to treat breaches of conditions by the seller as breach of warranties he is entitled to sue the seller in damages whenever such a breach occurs. the buyer may apply for the decree of specific performance. If the buyer or his agent intercept the goods before arrival at the agreed destination. If the carrier wrongfully neglects or refuses to deliver the goods to the buyer or his agent. • Closure of account STRATHMORE UNIVERSITY ● REVISION KIT .

namely the guarantor principal debtor and creditor. It is a tripartite agreement. The guarantor liability is secondary.236 Questions and Answers • (b) • • • • If the cheque is irregular. Contract of Indemnity This is a contract whereby a party known as indemnifier undertakes to be primarily responsible for the performance of a particular thing. Revision • This problem is based on cheques crossed generally but with the words “not negotiable” In this case it is apparent that Atieno had no title to the cheque and could not negotiate it to Nairobi Harambee Secondary School. The undertaking is made to the creditor. A contract of guarantee may be The indemnifiers liability is primary. The school therefore acquired no title to it or the amount. It consists of three parties. The indemnifier has a direct interest in the contract. (b) • Variation of the terms of the contract without the guarantors knowledge. sole. the indemnifier and the party to be indemnified. QUESTION EIGHT Contract of Guarantee This is a contract whereby a party referred to as a guarantor or surety undertakes to be collaterally or secondarily responsible for the acts or defaults of another known as the principal debtor. The contract must be evidenced by some note or memorandum. The contract consists of two parties. LAW 1 . continuing or fidelity. Pickering whose facts were substantially similar. The guarantor has no direct interest in the contract between the creditor and the principal debtor. My advise to Onyango is to sue Nairobi Harambee Secondary School for the amount. My advise is based on the decision in Wilson and Meeson V. The amount is therefore recoverable.

If it is apparent that the guarantee was obtained by concealment of material circumstances. If the creditors action against the principal debtor is statute barred. Release of a co-guarantor. If evidence shows that the guarantee was obtained by fraud. STRATHMORE UNIVERSITY ● REVISION KIT . Discharge of the principal debtor. Revocation of a continuing guarantee by the guarantor. Supervening illegality. Fulfilment of obligation by the principal debtor.Answers 237 • • • • • • • • • • If the guarantor extends the duration within which the principal debtor must fulfil his obligation. Failure by the creditor to take any step necessary to protect the guarantor.

• The source of force and validity of the rules and principles applicable as law in a country. for example: • Islamic law • Hindu law • African Customary law. These are the formal sources. • The factors that influenced the development of the rules of law. These are the historic sources. Hence the phrase ‘source of law’ refers to the historical. formal and legal sources of law. However. the phrase is often used to describe • The origins of the rules and principles which constitute the law applicable in a country at a given time. • The materials from which rules and principles of law developed. material. These are the material sources. Examples include: • Constitution • Common law • Legislation • Equity • Statutes of general application • Caselaw • Delegated legislation Subsidiary sources of law are those sources of law which regulate certain transactions of certain peoples of Kenya. LAW 1 . • The Hindu Marriage and Divorce Act and the Hindu Succession Act. The Judicature Act Cap 8 identifies eight sources of law of Kenya: • Constitution • Legislation (statute law) “All other written laws” • Delegated legislation • Statutes of General Application • Common law • Equity law • Case law or judge – made law • African customary law • The constitution and the Kadhis court act identify Islamic Law as a source of law. identify Hindu law as a source of law. They regulate all persons in Kenya. Principal sources of law are those sources of law of Kenya applicable throughout Kenya.238 Questions and Answers REVISION PAPER 3 QUESTION ONE (a) Revision The phrase “source of law” literally means where rules of law are found. These are the legal source.

The District magistrate of the 3 rd class can only hear cases from within the district in which it is established.” It is a subsidiary source of law of Kenya recognized by the Constitution and the Kadhi’s Court Act.Answers 239 QUESTION TWO This is a source of Law of Kenya (a) It is based on the Muslim Holy book the Quran and the teachings of prophet Mohammed contained in his sayings known as “Hadith.this is the power of a court to entertain or hear criminal cases on first instance or on appeal. courts martial. It only applies in the determination of civil cases relating to marriage. • Territorial jurisdiction – This is geographical jurisdiction. This is the power of court to hear a case. divorce. Resident magistrate court. to hear a case for the first time e. Court of Appeal. • Criminal jurisdiction: .g. For example the high court. The court can only entertain civil cases whose value of subject matter does not exceed a specified maximum. • Civil Jurisdiction: . for example the High Court. It is a subsidiary source of law of Kenya recognized by the Hindu Marriage and Divorce Act and Hindu Succession Act. succession or personal status in proceedings in which all parties profess Muslim faith. referred to a judicial district. divorce succession or personal status in proceeding in which all parties profess Hindu faith. It is only applicable in the settlement of civil disputes relating to marriage.e.this is the power of a court to hear civil cases of first instance or on appeal. the High court. • Appellate jurisdiction: this is the power of court to hear or entertain a case on appeal e. • Pecuniary jurisdiction – This is financial or monetary jurisdiction. (b) Hindu law is based on the Hindu Religion and Philosophy. (b) Types of jurisdiction Jurisdiction can be classified in various ways: • Original jurisdiction: this is the power of a court to hear a case of first instance i. STRATHMORE UNIVERSITY ● REVISION KIT . High Court. Kadhis court. This is the power of a court to entertain cases from within a defined geographical area. If a court can entertain or hear a particular case it is said to be a court of competent Jurisdiction.g.

This is a mistake as to the existence or ownership of the subject matter. It therefore follows that Shah has no actionable claim against Onyango as there is no contract between them. Each party knows the others intention but both are unaware of an underlying fundamental fact. Hastie. As was the case in Bingham V. Bindley whose facts were substantially similar. (b) • This problem is based on communication of acceptance by the offeree. Common mistake renders a contract void in two circumstances: o Cases of res extincta: these are circumstances in which the parties are unaware that the subject matter does not exist. If a limited partner assigns his interest the assignee becomes a limited partner. In addition a partner can only be expelled in good faith. He has no access to the firms books of accounts. LAW 1 . • This amounted to a rejection of Shah’s offer. QUESTION FOUR (i) • • (ii) • • • • • Under the provisions of the Partnership Act a partner can only be expelled from the firm if the power to do so is expressly vested upon the others. For example in Couturier V. • My advise is based on the decision in Felthouse V. o Cases of res sua: these are circumstances in which the person purporting to buy has legal title in the subject matter. Bingham. In such a case the contract is void.000” is an offer to which Onyango did not respond.240 Questions and Answers QUESTION THREE (a) • • • • Revision Common mistake is said to exist when both parties make the same mistake. • My advice to Onyango is that there is no cause for alarm as Shah has no action against him. Cannot demand an account from the partners. He does not become a partner in the firm He cannot interfere with the management of the firms business. Section 8 of the Sale of Goods Act embody this mistake. As a general rule silence does not amount to acceptance. • In this case Shah’s statement to Onyango to the effect that “I have decided to sell to you my car for $ 5.

However. an occupier owes all invitees a common duty of care. • Under the provisions of the Occupiers Liability Act. o The other party was aware of his mental condition STRATHMORE UNIVERSITY ● REVISION KIT . cap 34. • • QUESTION SIX (a) • If a person who is of unsound mind enters into a contract such a contract is voidable at his option by establishing that o He was too insane to understand the nature or effects of his acts. This is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor is reasonably safe in using the premises for the purpose for which he is invited or permitted by the occupier to be there. In determining whether an occupier has discharged his common duty of care regard must be had to o Whether the invitee is a child o Whether the invitee was exercising his calling o Whether the visitor was injured through the faulty execution of a task by an independent contractor o Whether the invitee had consented to the risk o Whether the occupier had given adequate warning and displayed the same conspicuously o Whether the person injured is a trespasser. QUESTION FIVE.Answers 241 (iii) • A person may be admitted as a partner in a firm if all existing partners agree. An occupier owes this duty to all other persons permitted by law to enter upon his premises. • A partner has behaved in a manner unfairly prejudicial to the firm and his continued association is likely to bring the firms name into disrepute. • A partner is continuously guilty of willful breach of the partnership agreement. • A partner is permanently incapable of discharging his obligations as a partner. in a limited partnership a person may be admitted as partner without consent of the limited partner. a court of law may order the dissolution of partnership if: • A partner has become a lunatic or is permanently of unsound mind. (iv) Under the provisions of the Partnership Act. • Circumstances are such that it is just and equitable that the firm should be wound up. laws of Kenya. • The firms business can only be carried on at a loss.

At common law a registered company can only enter into transactions set forth in its objects and those that are reasonably incidental to the attainment or pursuit of those objects. Great Eastern Railway (1880) it was held that in addition to the express objects. • Account payee: this crossing consists in addition to the general or special crossing. In Attorney General V. The customer is bound to exercise reasonable care when drawing cheques to avoid alteration. cheque is a bill of exchange drawn on a bank payable on demand. LAW 1 (c) . The contractual capacity of registered companies is determined by the objects clause of the memorandum. Type of crossings • General crossing: a general crossing is one which consists of two parallel transverse lines on the face of the cheque with or without the words. contractual capacity is conferred by statute. It was so held in Ashbury Railway Carriage Ltd V. It can only enter the transactions stipulated by the statute and those that are reasonably incidental thereto. An ultra wires transaction is not capable of being ratified. (c) The contractual capacity of artificial persons is determined by law. Under the Sale of Goods Act if a person of unsound mind is supplied with necessaries he is liable to pay a reasonable price.” “a/c payee” • Special Crossing: consist of two parallel transverse lines on the face of the cheque with the name of the banker in between. the words “account payee” or account payee only or account x only: such crossings area direction to the banker collecting payment that the proceeds when collected are to be credited to the account of the payee named on the face of the cheque. Their contractual capacity is restricted by the provisions of the Bankruptcy Act. Other transactions are ultra vires and therefore null and void. “and company. Ltd V. Stone where the defendant escaped from liability on the ground of insanity. • • This problem is based on the obligations of the customer towards the banker. • Not negotiable: these are words that a holder may add to a cheque crossed generally or specially. In the case of statutory corporations. a company had capacity to enter into transactions reasonably incidental to the attainment or pursuit of those objects. As was the case in Imperial Loan Co. (b) Undischarged bankrupts are persons who have been declared bankrupt of by a court of competent jurisdiction. QUESTION SEVEN (a) (b) Under the provisions of the Bills of Exchange Act.242 Questions and Answers Revision • • By proving these facts the party escapes liability. Riche.

Answers 243 • • In this case Speed Company Ltd acted negligently in drawing the cheque and this facilitated the change by Hesabu.Where the parties have failed to agree as to who to appoint as a sole arbitrator . • The dispute was not capable of resolution by arbitration • The applicant was not afforded an opportunity to appoint arbitrator. the the the STRATHMORE UNIVERSITY ● REVISION KIT . for example law society of Kenya. This position is consistent with the decision in London Joint Stock Bank V. High court in the circumstances set forth in section 12 of the Arbitration Act. MaCMillan and Arthur whose facts were substantially similar. if it (b) The High Court may set aside an arbitral award on application is satisfied that: • One of the parties to agreement had no capacity to contract • The arbitration agreement was not valid in law. • The award is contrary to public policy in Kenya • The arbitral tribunal was not appointed in accordance with agreement. .Either party has failed to appoint an arbitrator within 30 days of receipt of the other partys notice to do so. • QUESTION EIGHT (a) • • • Arbitrators or arbitral tribunals may be appointed by: Parties to the dispute Third party or body as agreed upon by the parties.Where the two arbitrators appointed or the parties themselves fail to appoint a third arbitrator. . My advise to the bank is that it is not liable to credit the company’s account as the company failed to observe its duty of care. • The arbitral award deals with a dispute not contemplated by parties.

executive and the judiciary. being away on a crusade or being cut by floods. Beneficiaries had no remedies against errant trustees. Inflexibility or rigidity. office of the Attorney General. Its supremacy as a source of law is manifested in the following ways: o Validating norm: All other laws derive their validity from the constitution.it could not decree specific performance or grant an injuction. Delays: administration of justice at common law was excruciatingly slow by reason of a lengthy procedure and defendants. the electoral commission and the public service commission o Special amendment procedure: under the provision of the constitution a Bill seeking to amend the constitution must be supported by not less than 65% of all members excluding the ex-officio members during the second and third readings. Since the relationship was not legally recognized. Often relied on standard defences known as essoins to delay the cause of Justice by pleading sickness. the common law system of administration was too rigid by reason of the doctrine of stare decisis. Auditor General. o Organs of government: the constitution creates the principal offices and organs of government i. All loans had to be repaid within the contraction period. commissioner of police. Non-recognition of trust: .e the legislative. Under section 84 (1) of the constitution a person whose right or freedom has been. o Fundamental rights and freedoms: chapter five of the constitution guarantees the fundamental rights and freedoms of the individual. failing which the security was forfeited. LAW 1 (b) • • • • • • • . Writ system – this system did not recognize all possible complaints and delayed administration of justice.at common law trustee and beneficiaries had no enforceable rights or duties.244 Questions and Answers REVISION PAPER 4 QUESTION ONE (a) • Revision The constitution of Kenya is the supreme law of the land and prevails over all other laws. borrowers who failed to honour their contractual obligations within the required duration often lost their securities. Inadequate protection of borrowes. Inadequate remedies: common law courts could only award damages:. o Proclaims supremacy: Section 3 of the Constitution is emphatic that it is the supreme law and any other law inconsistent with it is void to the extent of the inconsistency. Procedural technicalities: common law courts paid undue attention to procedural niceties. is being or likely to be violated has Locus Standi to seek judicial redress.

• Membership: it consists of the following categories of members.Answers 245 QUESTION TWO (a) • • • • Duty to the court: as an officer of the court. as a body corporate by name Law Society of Kenya with perpetual succession and a common seal and capacity to sue or be sued. Establishment: The Law society of Kenya is established by section 3 of the Law Society of Kenya Act Cap 18. • To protect and assist members of the legal profession in relation to the condition of practice of law • To assist and protect members of the public in all matters touching or incidental to law • To acquire or dispose off assets. • To do everything necessary to accomplish its objects. an advocate is bound to participate in the social. • To raise funds. an advocate is bound to assist the court in the administration of justice by urging the facts and the law correctly. The affairs of the society are managed by a council elected by members Under Section 4 (1) of the Law Society of Kenya Act. a legal duty of care to represent them in the best manner possible. He is liable in damages for professional misconduct or negligence for failing to exercise reasonable care. QUESTION THREE STRATHMORE UNIVERSITY ● REVISION KIT . an advocate is bound to maintain the highest possible standard of conduct and integrity by observing the rules and ethics of the profession. Duty to society: as a member of society. Duty to the profession: as a member of a profession. Duty of client: he owes his clients. political and economic development of the society. • Practicing advocates • Non-practicing advocates • Special members • Honorary members. • To facilitate acquisition of legal knowledge by members and others • To assist the government and the courts in all matters relating to legislation and administration of law. the objects of the society are: • To maintain the standards of conduct and leaning of the legal profession.

As was the case in L’Estrange V. As a general rule a third party cannot take advantage of an exemption clause in a contract it was not party to. Securities Bremer Allegemeine. If an exemption clause is ambiguous or uncertain. Signature prima facie means acceptance. which is to the effect that an exemption clause will not generally be given effect is doing so amounts to a fundamental breach or enables the stronger party evade the fundamental obligation of the contract. Ltd V. However the signature is voidable at the option of the innocent party if its contents were misrepresented. LAW 1 . Trafal gar Ins. it could not be given effect as doing so amounted to a fundamental breach of contract by the plaintiff. it must be interpreted Contra Proferentes i. The party affected by the clause must have been aware of its existence. Kenya Safari Lodges and Hotels Ltd.246 Questions and Answers (a) • Revision • • • • • • • For a court of law to consider the effect of an exemption clause in a contract. An exemption clause may be made part of a contract by signature or notice. • Giving effect to the exemption clause would enable G. As was the case in Houghton V. • This obviously amounts to a fundamental breach of contract by the company and K. The court must in the same breath be satisfied that the party affected by the clause signed the document voluntarily. the court must be satisfied that the document contained the terms of the contract. As was the case in Curtis V. it was in the first instance be satisfied that the clause was an integral part of the contract. motors Ltd evade the fundamental obligation of the contract. Wallis where it was held that although the exemption clause had been incorporated into the contract. Kemei has reason to feel aggrieved. As was the case in Lougher V. • In this case K. Kemei bought a new and nice looking car from G. The party alleging fundamental breach must prove it. Graucob. An exemption clause cannot as a general rule be given effect if doing so enables a party to the contract evade the fundamental obligation of the contract.N. Co. but the motor vehicle supplied by the seller is fundamentally different in that is second hand and has many mechanical defects. Motors Ltd. Chemical Cleaning and Dyeing Co. A belated notice of an exemption has no effect on the contract. As was the case in Karsales (Harrow) Ltd V. As was the case in Halal Shipping Co.N.e. If the clause is embodied in a document signed by the parties. (b) • This problem is based on the enforcement of exemption clauses with specific reference to fundamental breach or obligation theory. The party affected by the clause must have been aware of its existence when the contract was entered into. strictly against the party relying on it.

g. if a member of displine forces is required to stay in barracks and in a state of emergency. QUESTION FOUR (a) • • • • Human rights or fundamental rights are certain values shared by all human beings by reason of being God’s creation. • Freedom of movement: right to move all over the country. Right to property: this right is protected by section 75 of the constitution. The company cannot effectively rely on the exemption clause as a defence.g. Right to personal liberty: this right is protected by section 72(1) of the court. Restrictions to this right includes: if under police custody due to criminal offence. They are rights attributable to all human beings and are enjoyable by all irrespective of any contractual or other relationships. Wallis whose facts were substantially similar. • Freedom from discrimination or discriminatory laws. The STRATHMORE UNIVERSITY ● REVISION KIT . In Kenya the fundamental rights are freedoms of the individual are guaranteed by chapter V of the Constitution and their enjoyment is generally qualified on the ground of rights and freedoms of others and public interest. Kemei is to refuse to take delivery of the motor vehicle and sue the company in damages for the breach. QUESTION FIVE (a) Vicarious liability is the liability of one person for the torts committed by another person by virtue of their relationship. Right to protection of law: this right is guaranteed by section 77 of the constitution. the right to form and join trade unions.Answers 247 • My advise to K. My advise is based on the decision in Karsales (Harrow) Ltd V. religious belief. Rights Right to life: this right is protected by section 71 (1) of the constitution. • Freedom of expression: everyone has the right to freedom of expression • Freedom of assembly and association: everyone has the right to meet and to form groups with others e. These rights enhance the dignity of humanity. (b) • • • • Freedoms • Freedom of conscience: this freedom involves freedom of thought one should be able to from own ideas and follow them e.

If the tort in question is one of strict liability e. Thus where there is a relationship of master and servant. As the master.” As was the case in Beard V.g. the former is always liable for torts of the servant if committed in the course of employment even without his express approval.e a contract of service between them. • LAW 1 . He is his own master and exercises his discretion in accordance with the terms of the contract with the employer. Fletcher.248 Questions and Answers Revision concept of vicarious liability is founded on the fact that employees are usually people of meager means and it is therefore only fair that the injured person is allowed to recover damages from the employer. (b) • • • • • • (c) • • • This problem is based on the principle of vicarious liability. rule in Rylands V. An independent contractor is a person engaged by another to render a particular service i. • The tort was committed by the servant in the course of his employment. He is generally liable for torts committed by his servants and agents. However. The employer is liable notwithstanding the fact that the employee was acting negligently. If the employer retains control or interferes with the discharge of the obligation. Romford Ice and Cold Storage Ltd. London General Omnibus.e. In this case Nafula is the master and her employee the servant. the employer is not liable for torts committed by the employee while engaged on a “frolic of his own. If the ordinary discharge of the independent contractors obligation amounts to the commission of a tort. However. there is a contract for services between the parties. deliberately wantonly or for his own benefit. If the independent contractors obligation amounts to a tort. For example in Lister V. for example. If the independent contractor negligently discharges a duty imposed upon the employer by law. Nafula is liable for torts committed by her employee in the course of her employment. in certain circumstances the employer is liable for such torts. But the master is not liable for torts committed beyond the scope of employment unless he has expressly authorized such acts or subsequently ratifies them. For the master to be held vicariously liable the plaintiff must establish that: • There was a master and servant relationship between the parties i. criminally.

J. o If the debtor enters into an agreement with his creditors to compound his debts whereby he agrees to pay a portion of the amount owed to each creditor. My advise to Atieno is that since her proprietary rights have been violated she has an actionable claim against Nafula’s employee in damages. Nafula’s employee was not acting in the course of her employee and Natula is therefore not liable. payment of a lesser sum by the debtor extinguishes the entire debt. o If the lesser sum is paid by a third party and accepted by the creditor in full settlement of the debt. • • QUESTION SEVEN (a) • • • Duties of the bailor Deliver the goods the subject matter of contract to the bailee. Beer (1884). However. However in certain instances payment of a lesser sum extinguishes the entire debt. payment of a lesser sum by cheque in lieu of cash is not a different from of currency. This rule was upheld in Foakes V. o Where the lesser sum is at the creditor request paid at a different place and accepted in full settlement of the debt. and the creditors agree to accept the same and promise not to insist in full payment. QUESTION SIX • This is one of the rules of consideration. However. the plaintiff accepted 9 pounds from the defendant for the balance. Disclose any defect in the goods or in his title to the bailee. Indemnify the bailee from any loss or liability arising by reason of his defective title. This is the rule in Pinnels case (1602) as enunciated by Brian C. In D and C Builders Ltd V. It was held that the action was unenforceable as the payment by the defendants father had extinguished the entire debt. Drake the defendant owed the plaintiff 18 pounds. o Where the lesser sum is paid in addition to the an object and accepted by the creditor in full settlement of the debt. o If the lesser sum is at the creditor request paid in a different currency and accepted in full settlement of the debt. Rees. STRATHMORE UNIVERSITY ● REVISION KIT . o Where the lesser sum is paid in advance and accepted by the creditor in full settlement of the debt. o If the lesser sum is paid in the form of an object which is accepted by the creditor in full settlement of the debt. In Welby V. Payment of a lesser sum by the debtor does not extinguish the debt as he has provided no consideration for the creditors promise.Answers 249 • • It is apparent that by throwing rubbish into Atieno’s compound. These are exemptions to the rule in Pinnels case.

• Registered corporations: these are companies formed in accordance with the provisions of the Companies Act. equitable or maritime. capacity to contract sue or be sued e. office of the Public Trustee.250 Questions and Answers Revision Duties of the bailee • Take delivery of the goods bailed. LAW 1 . • Chartered Corporations: these are corporations created by charter granted by the relevant authority under the Universities Act. For example Private Universities e. • Take reasonable care of the goods bailed. • Return the goods to the bailor as soon as the purpose for which they were bailed is accomplished. In registered companies. QUESTION EIGHT (a) Types of corporations • Corporation sole: this is a legally established office distinct from the holder and can only be occupied by one person at a time after which he is successeded by another. o Possessory lien: this is the right of person in possession of anothers goods to retain them to compel the owner to fulfill an obligation owning. • Statutory Corporations: this is a corporation created by an act of parliament for example Agricultural Finance Corporation. (b) • Alien is a right conferred upon a person by trade usage or custom or by the law in certain circumstances. A lien may be possessory. It may be particular or general and is dependent on possession which must be lawful and continuous. It is a legal person in its own right. It is independent of possession and is enforceable by court action. with perpetual succession. o Maritime lien: this is the right to have a ship or its cargo sold and the proceeds applied in a particular manner. office of the permanent secretary to the Treasury. He is not liable for ordinary wear and tear.g. Examples are public and private companies.g. as a security for the fulfillment of an obligation owed by another or others. (b) • Limited liability: members are as a general rule not liable to make good the debts of corporation. It is a self-help remedy. • Deal with the goods in a manner consistent with the bailment. It is independent of possession and is enforceable by court action. Baraton University. o Equitable lien: this is the right of a person to have certain property applied in a particular manner.

Legal or corporate personality: corporations are legal persons in their own right i. distinct and separate from its members – it was so held in Salomon V. they have capacity to hire and fire. mind or soul. Ltd. a corporation has capacity to sue to enforce the rights and may be sued on its obligation.Answers 251 members can only be called upon to contribute the amount unpaid on their share or the amount they undertook to contribute. Additionally. Northern Assurance Co. Owning of the propery: a corporation has capacity to own property. Death of a member has no effect on its existence. once a company is formed it becomes a legal person. Perpetual succession: a corporation is a creation of law. It can therefore insure such property as it has an insurable interest in it. (1925). Its life lies in the intendment of law. It has no body. Ltd. The property of a corporation is vested in it and not on its members. It has capacity to exist in perpetuity. they have an independent legal existence with distinct rights and subject to obligations. Capacity to the contract: corporations have legal capacity to enter into contractual relationships in pursuit of their objects. Sue be sued: as a legal person with rights and subject to obligations. Harbottle (1843). Ltd (1961) • • • • • STRATHMORE UNIVERSITY ● REVISION KIT . As was the case in Foss V. It was so held in Lee V. It was so held in Macaura V.e. Lees Air Farming Co. Salomon and Co. In company law.

However. which literally means beyond the powers. unless otherwise provided all delegated legislation must be published in the Kenya Gazette before coming into operation. o The delegate has exceeded the power prescribed by the enabling or Parent Act. The delegates can only exercise their legislative power in accordance with such scope and procedure. ministers. A court of law may declare delegated legislation substantively or procedurally Ultra Vires.252 Questions and Answers REVISION PAPER 5 QUESTION ONE Revision This statement is a correct observation of the prevailing circumstances. professional bodies. Delegated legislation made without compliance with the procedure LAW 1 • • . • The enabling or Parent Act may require or insist that the draft legislation be circulated to interested parties of comments for example by-laws. • Under section 27(1) of the Interpretation and General Provisions Act. the date of commencement may be backdated. o The delegate acted unreasonably. parliament is empowered to annul the rules by resolution to the effect. • Under section 34 (1) of the Interpretation and General Provision Act. A court of law is empowered to declare delegated Legislation ultra vires where upon the rules become null and void and therefore in operative. for example governments. Procedural ultra vires The procedure of law making prescribed by the enabling or Parent Act is mandatory and must be complied with by the delegate. unless otherwise provided delegated legislation must be laid before parliament for approval. • Parliament delegates legislative power to specific persons or bodies. • The enabling or Parent Act may require or provide that the rules and regulations made may be laid before the minister concerned for approval. This is because in the first instance parliamentary safeguards or mechanisms are ineffective. (Cap 2). • Parliament prescribes the scope and procedure of law making. Cap 2. local authorities and statutory bodies. Substantive ultra vires A court of law may declare delegated legislation substantively ultravires if on application it satisfied that. o The delegate exercised his powers for a purpose other than that for which the power was conferred. • Judicial control Courts of law attempt to control delegated legislation through the doctrine of Ultra Vires. However.

Jurisdiction: it exercises original jurisdiction in criminal cases relating to offences committed by the members of the armed forces within its jurisdiction e. The court had jurisdiction to impose the following sentences: • Imprisonment • Fine • Dismissal from the armed forces • Reprimand • Reduction of rank • Capital punishment A decision of the court may be appealed against in the High Court. Courts of reason of made to discharge law cannot effectively control delegated legislation by their passive nature. Since the rules were procedurally defective they were declared procedurally ultra vires and the appellants conviction and sentence was set aside.g. R (1950) the appellants were convicted by Resident Magistrates Court in Nairobi for overcharging a hair cut contrary to the Defence Control Regulations 1948. On appeal. Composition: the court consists of a presiding officer who sits with not less that two other persons or not less than four others if an officer is being tried or where the maximum penalty for the offence is death. It was established in 1964. The appellants had charged Sh. STRATHMORE UNIVERSITY ● REVISION KIT . The court is assisted by a Judge/Advocate who advises on questions of procedure.Answers 253 thereby prescribed is procedurally defective and may be declared procedurally ultra vires if challenged before a court of law.1. an application must be the court and the applicant must at the very least the burden of proof. the appellants argued that their conviction and sentence was null and void as the rules under which they had been convicted were procedurally defective in that they had not been published in Government Gazette as required by law. Secondly. Establishment: it is established under section 14 (1) of the Trade Disputes Act. The convict may appeal against conviction or sentence or both. In Maina and Mwangi V. He had fixed the price of a haircut at 50 cent. These regulations empowered the price controller to fix charges for various services including a hair cut. mutiny. disobeying lawful order or desertion. QUESTION TWO Establishment: it is established by section 85 (1) of the Armed Forces Act as a subordinate court.

Effect of a counter offer The legal effects of a counter offer is to terminate the original offer. An offer differs from an inquiry or request for information.e. employers and employees. QUESTION THREE • Cross offers This is a phenomenon whereby a party submits an offer to another who has already dispatched a similar offer and two offers cross in the course of transmission. No agreement arises between the parties for lack of consensus ad idem. namely. Wrench (1940). A counter offer is an offer in its own right and if accepted by other offeror. • The principal function of the industrial court in determining industrial disputes is to promote industrial harmony. industrial disputes for example. LAW 1 . stayed or reviewed. cannot be appealed against. Jurisdiction: it exercises original jurisdiction in civil matters. On June 27th the defendant wrote refusing the pound 950. In Hyde V. It was held that there was no agreement between the parties as the plaintiff counter offer of 950 terminated the original offer of the defendant which therefore did not exist when the plaintiff purported to accept it.254 Questions and Answers Revision Composition: it is presided over by judge appointed by the president. an agreement arises. On June 29 the plaintiff wrote accepting to pay 1000 pound for the farm but the defendant declined. • Counter-offer: This is the variation or modification or change of the terms of the offer by the offeree. The offeree in such a case gives a qualified or conditional acceptance which is not an acceptance in law. At the moment there are two industrial court judges. Disputes may be referred to the court by the minister for labour or a registered trade union. • An award must be published in the Kenya Gazette where upon it becomes effective. The judge sits with two other persons selected by him from a panel of four persons appointed by the minister for labour in consultation with COTU and Federation of Kenya Empoyers. • The Industrial court maintains a register of all collective agreements registered with it. On June 6th the defendant made a written offer to sell a farm to the plaintiff for 1000 pounds on 8th June the plaintiff wrote back accepting to buy the land for pound 950. It therefore remains as the offer. Decisions of the court are known as AWARDS and are final i.

However. o A statement that the partnership is limited and a description of every limited partner. To facilitate registration. Such “acceptance” is not an acceptance in a legal sense. it is deemed to be a general partnership. a memorandum containing the following particulars must be delivered to the registrar: o Name of the firm o General nature of the business o Principal place of business o Full name of each partner o The term. It was held that the defendant was liable in damages for breach of contract as his standing offer had been accepted by the railway company. STRATHMORE UNIVERSITY ● REVISION KIT .” In Great Northern Railway Company V. if any. (b) • Cannot withdraw or receive back his interest during the currency of the firm.Answers 255 Standing offer This is an offer which arises when a persons tender to supply goods or services is “accepted” by the other party. In converts the tender to a standing offer for the duration specified and the offeror is bound to supply the goods or services whenever requested by the offeree. If a limited partnership is not registered. a statement to that effect must be delivered to the registrar within 7 days of the change. for which the partnership is entered into at the date of its commencement. Witham the plaintiff company invited tenders for the supply of “stores” for 12 months. Such a contract is referred to as an “option. If during the subsistence of a limited partnership any change occurs in the afore mentioned particulars. a standing offer may be revoked by the offeror or at any time before an order or requisition is made unless the parties have by a separate contract agreed that the offeror is to keep his standing offer open. QUESTION FOUR (a) Under the provisions of the Limited Partnership Act a limited partnership must be registered with the registrar of companies. Such quantities as required by the company. The plaintiff company accepted the defendants tender and subsequently made a requisition for stores within the 12 months but the defendants failed to supply and was sued. o The sum contributed by each limited partner and whether paid in cash or otherwise. The defendants submitted a tender indicating his desire to supply the stores for 12 months.

Unless otherwise provided the firms affairs are wound up by a general partner. where there is a contract for the sale of specific goods or where goods are subsequently appropriated to the contract but the seller reserves the right of disposal of the goods until certain conditions are fulfilled. property passes to the buyer when the auctioneer announces its competition by the fall of the hammer. or in such other customary manner. the seller can only sue for the price after property in the goods had passed. Sale by description • • LAW 1 . A person may be admitted as partner without consent of the limited partner. • Sale by auction Under section 58 (1) of the Sale of Goods Act where there is a sale by auction. property in the goods pass to the buyer when the conditions imposed by the seller are fulfilled. His death of bankruptcy or insanity does not lead to dissolution. Sale by reservation Under section 21 (1) of the Act. Charging of his interest for a private debt does not lead to dissolution. It determines when risk in the goods pass to the buyer hence the party is liable in the event of loss or destruction. Until the hammer falls. he becomes a general partner for the duration he acted and may be held personally liable. It determines the remedies available to the parties. the bidder may retract his bid. where there is a contract for the sale of unascertained goods. QUESTION FIVE (a) • • • It is the essence of the contract of the sale of goods that property in the goods pass to the buyer. (b) Property in goods passes to the buyer at different times in different contracts hence the passage of property is governed by the following rules: • Sale of unascertained goods Under section 18 of the Act. property passes to the buyer when the goods are ascertained. If he does. for example.256 Questions and Answers • • • • • • • Revision May not take part in the management of the firms business. does not bind the firm Cannot dissolve the partnership by notice.

the genuineness of his signature. property in them passes to the buyer. tasted. • Sale by approval or on sale or return Under section 20 (d) of the Act where goods are delivered to the buyer on approval or on sale or return or other similar terms. o By the buyer with consent of the seller or by the seller with consent of the buyer. property passes to the buyer when the contract is made. The drawee of a bill who does not accept it is therefore not liable on it (53). STRATHMORE UNIVERSITY ● REVISION KIT . • • • QUESTION SIX Under the provisions of the Bills of Exchange Act. property in them passes to the buyer when: o Goods of that description.g. • A bill of itself does not operate as an assignment of funds in the hands of the drawee available for payment of the bill. measured.Answers 257 Under section 20 (e) (i) of the Act where there is a contract for the sale of unascertained goods by description. Sale of specific goods to the weighted. o In a deliverable state. property in the goods passes to the buyer when they are weighted. by accepting it according to the tenor of his acceptance engages that he will pay it according to the tenor of his acceptance is precluded from denying to a holder in due course. Sale of specific of goods to be put into a deliverable state: under section 20 (b) of the Act where there is a contract for the sale of specific goods and the seller if bound to do something for the purpose of putting the goods into a deliverable state. test or do some other act or thing for the purpose of ascertaining the price. • The acceptor of a bill. Unconditional sale of specific goods in a deliverable: under section 20 (d) of the Sale of Goods Act. property in them passes to the buyer when they are put into a deliverable state and he is notified. measured or tested: under section 20 (c) of the Act. o Are unconditionally appropriated to the contract. or that other thing is done and the buyer is notified. where there is an unconditional Sale of Specific goods in a deliverable state. measure. • When he signifies his approval or acceptance or • When he does any other act adopting the transaction e. where there is a contract for the sale of specific goods but the seller is bound to weigh. • The existence of the drawer. and his capacity and authority to draw the bill. reselling or pledging the goods or • When he retains the goods after expiration of the stipulated or reasonable time without signifying his rejection.

but not the genuineness or validity of his endorsement.258 Questions and Answers • • Revision In the case of a bill payable to the drawers order. and if it be dishonoured he will compensate the holder or any endorser who is compelled to pay it. • Is precluded for denying to a holder in due course the existence of the payee and his capacity to endorse. The company has capacity to invest to promote its profitability. Suing or being sued: members are not bound to sue to remedy wrongs done to the company and cannot generally be sued for the wrongs of the company. it shall be accepted and paid according to its tenor. • Engages that on due presentment. and that he had then a good title thereto. Owning of property: the property of a corporation does not belong to its member. • Is precluded from denying to his immediate or subsequent endorsee that the bill was at the time of his endorsement a valid and substituting bill. In the case of the bill payable to the order of a third person. the existence of the payee and his capacity to endorse. The endorser of a bill by endorsing it. This encourages investment. QUESTION SEVEN (a) By incorporating a partnership. The drawer of a bill by drawing it • Engages that on due presentment. then the capacity of the drawer to endorse. • • • • • • LAW 1 . but not the validity or the genuineness of his endorsement. Capacity to contract: the fact that a company can enter into contractual relationships means that it can engage in commercial transactions for the benefit of its members and society. it becomes a company limited by shares and certain advantages accrue there from: Limited Liability: members liability for debts and other obligations is limited by shares. Wide capital base: compared to other forms of business associations registered companies have the widest capital base by reason of the wide spectrum of membership. They are not liable to pay more. so long as the requisite proceedings on dishonour by duly taken. and if it be dishonoured he will compensate the holder or subsequent endorser who is compelled to pay it so long as the requisite proceedings on dishonour be duly taken. it shall be accepted and paid according to its tenor. • Is precluded from denying to a holder in due course the genuineness or regularity in all respects of the drawers signature and all previous endorsements. Perpetual succession: the death of a member or members of the corporation has no effect on its existence.

o Does not interfere with the ordinary business of the company. Company shares are transferable. Borrowing by floating charge: a registered company is free to utilize the facility of floating charge to borrow. This is an equitable charge securing a debenture on the assets of a going concern but which remain dormant until crystallization. Members have the opportunity to elect qualified persons as managers. STRATHMORE UNIVERSITY ● REVISION KIT . thus membership keep on changing from time to time and the company could take advantage of the entrepreneurial skills of new members. A floating charge: o Enables companies with no fixed assets to borrow o Enhances the borrowing capacity of companies with fixed assets.Answers 259 • • • Qualified management: companies are managed by directors elected by members. Transferability of shares: under the Provision of the Companies Act the shares or other interest of any member shall be movable property transferable in manner provided by the articles. o Enables companies to use future assets as security.